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Texas Telephone Laws 



R. B. HUMPHREY */ 

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OF THE THROCKMORTON BAR 


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Copyright Applied For. 



APR 13 1916 *' 

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TABLE OF CONTENTS. 


Chapter 1. 
Chapter 2. 
Chapter 3. 
Chapter 4. 
Chapter 5. 
Chapter 6. 
Chapter 7. 
Chapter 8. 
Chapter 9. 
Chapter 10. 
Chapter 11. 
Chapter 12. 
Chapter 13. 
Chapter 14. 
Chapter 15. 
Chapter 16. 

Chapter 17. 
Chapter 18. 

Chapter 19. 

Chapter 20. 


Definitions. 

Telegraph and Telephone Distinguished. 
Ownership. 

Taxation. 

Construction of Line. 

Rates. 

Consolidations. 

Physical Connections and Transfer of Messages. 
Discontinuance of Service. 

Criminal Offenses and Discrimination. 
Telephone Line as Nuisance. 

Personal Injuries. 

Storm Damage. 

Damages for Cutting Pasture Fence. 

Damages for Trespassing on Private Property. 

Damages to Abutting or Adjoining Property by 
Killing Trees. 

Damages to Abutting or Adjoining Property. 

Exemplary Damages for Injury to Abutting 
Property. 

Telephone Line Interferring With Moving of 
House. 

Damages for Negligent Failure to Furnish 
Service. 



CHAPTER I. 


REFINITIONS. 

Telephone defined. —The meaning of the word telephone 
seems difficult to state. The authorities do not agree. Thus, 

“A telephone has been defined as an instrument for trans¬ 
mitting spoken words.” (Bouvier’s Law Dictionary.) 

“An instrument by which two persons may talk directly to 
each other.” (Gilpin vs. Savage, 112 N. Y. Suppl., 802.) 

“An instrument or apparatus for the transmission of sound 
to a distant point. The word is generally restricted to devices 
for the transmission of articulate speech by the agency of elec¬ 
tricity. ’ ’ (Century Dictionary.) 

“In a general sense the name telephone applies to any instru¬ 
ment or apparatus which transmits sound beyond the limits of 
ordinary audibility. The speaking tube used in conveying the 
sound of the voice from one room to another in large buildings, 
or a stretched cord or wire attached to vibrating membranes or 
discs by which the voice is carried to a distant point is, strictly 
speaking, a telephone.” (Hockett vs. State, 5 N. E. Rep., 178.) 

There are many others. 

Now, a legal definition should be so brief, accurate and com¬ 
prehensive that a stranger to the thing defined might recognize 
it on sight. No such definition of the telephone has yet been 
offered, so far as my diligent search has revealed. 

For the purposes of this volume and as being at least no 
more confusing than others the following is submitted: 

A device for the transmission of spoken words, by means of 
electrically charged wires, beyond the ordinary reach of the 
human voice. 

Technical and other definitions distinguished. —“A telephone, 
* * * when technically defined, means only the instrument 

itself, but, when considered with reference to the use to be 
made of it, it must be accompanied with all the necessary appa¬ 
ratus for the reception and transmission of messages.” (Pan¬ 
handle Telephone & Telegraph Co. v. City of Amarillo, 142 S. 
W. Rep., 638.) 

Extension telephone defined. —“An ‘extension telephone’ is 


2 


Texas Telephone Laws. 


an instrument consisting of bell, receiver, and transmitter, con¬ 
nected with the telephone which appears numbered on the list, 
and is used solely through such numbered instrument, having 
no independent connection with the switchboard by distinctive 
ring or otherwise. An extension telephone is placed as a rule 
in the same room with the main phone, or perhaps in another 
room of the same business concern, to serve as a convenience 
to the several persons engaged in the same business.’’ (Pan¬ 
handle Telephone & Telegraph Co. v. City of Amarillo, 142 S. 
W. Rep., 638.) 

Telephone exchange defined. —“A telephone exchange is an 
arrangement for putting up and maintaining wires, poles and 
switch boards within a given area, with a central office, and 
the necessary operators to enable the individual hirers of tele¬ 
phones within that area to converse with each other.” (W. U. 
Tel. Co. v. Am. Bell Tell. Co., 105 Fed. Rep., 698.) 

Private line and exchange system distinguished. —“In the 
case of a private line, the customer is furnished with (1) a 
telephone instrument and (2) auxiliary apparatus and services 
in the form of call bells, batteries, and care of instruments and 
apparatus. In the case of an exchange system, the customer is 
also furnished with the exchange service and its accompanying 
features, which include connection with the exchange and all 
subscribers, telephone operators, etc.” (W. U. Tel. Co. v. 
Am. Bell Tel. Co., 105 Fed. Rep., 698.) 

Line defined. —A line is not the combined wires of an entire 
system, but the wire which connects each telephone with an 
exchange. One post may support several such lines. (S. B. T. 
& T. Co. v. D’Alemberte, 21 Southern Reporter, 570.) 

Negligence defined. —“No definition of negligence has ever 
been promulgated that was entirely satisfactory to the bench 
and bar.” (Ry. Co. v. Everett, 86 S. W. Rep., 17; 99 Texas, 
268.) 

“Briefly, negligence is the failure to exercise ordinary 
care.” (Ry. Co. v. Hubbard, 33 T. C. A., 343; 76 S. W. R., 764.) 

“The test of negligence is what a person of ordinary pru¬ 
dence would or would not do under the same or any similar 
circumstances.” (Ry. Co. v. Webb, 49 S. W. Rep., 526; 20 
T. C. A., 431.) 


Texas Telephone Laws. 


3 


Contributory negligence defined. —“Contributory negligence 
is such an act or omission of the plaintiff, amounting to a want 
of ordinary care and prudence as, concurring or co-operating 
with the negligent act of the defendant is the proximate cause 
of the injury complained of.” (Ry. Co. v. Anchonda, 75 S. 
W. Rep., 557; 33 T. C. A., 24.) 

“If the person injured proximately contributed to the in¬ 
jury, so that but for his fault the injury would not have hap¬ 
pened, except where the other party does not use proper care 
after knowledge of the former’s danger, there is contributory 
negligence.” (Ry. Co. v. Smith, 52 Texas, 178.) 

Note.—These definitions could be almost countlessly multiplied, 
but for the purposes of this work, it is deemed unnecessary. Those 
given have been selected as of the best. 


CHAPTER II. 

TELEGRAPH AND TELEPHONE DISTINGUISHED. 

Scientifically identical. —Scientifically the telegraph and the 
telephone are almost identical. Each depends for its usefulness 
upon electrically charged wires. A. change of operative appa¬ 
ratus will transform a telephone line into a telegraph line and 
vice versa. Science deals with the instrument itself, its com¬ 
ponent parts, accompanying appliances and means of exercise. 

Legally dissimilar. —In contemplation of law, however, there 
is no such approximate identity because the law deals only with 
questions based upon, incident to, or growing out of service, 
or failure thereof (1), and there being a fundamental difference 
in the character of service possible of rendition, resulting mat¬ 
ters of law are of necessity fundamentally different. 

Thus, the telegraph accepts a written message and agrees to 
transmit the same to an addressee. 

The telephone offers to place the person calling, in telephonic 
-connection with the person called. 

The service is in no way similar, and the assumed liability 
can not be similarly measured. 

True, our courts, have many times held that the eminent do¬ 
main statute (1) applies to both long distance telephone and 
telegraph lines, though it mentions only the latter. The lan¬ 
guage of the statute is “magnetic telegraph lines” and as none 
of the decisions has gone farther than to apply it to the long 
distance telephone line in right-of-way cases, the decisions in 
no way conflict with what is above said. And, the refusal of 
the Supreme Court to apply that statute to local telephone lines 
would seem to emphasize the courts sense of the inherent legal 
difference between the telegraph and the telephone. 

Again, it seems that the degree of care incumbent upon both 
the telegraph company and the telephone company is the same, 
namely, ordinary care, but this rule is applied to all persons 
or corporations offering a public service where there is no rea¬ 
son for a higher or lower degree, so that it in no way even tends 
to identify the two businesses. 


(1). See Chapter 5, ‘‘Construction of Line.” 



Texas Telephone Laws. 


5 


Numerous differences as to service and liability will readily 
suggest themselves. 

For instance, any one capable of speech and hearing may 
make use of the telephone. 

Only a trained expert can use the telegraph. 

While the telegraph is used exclusively for long distance 
communications, and though the telephone is to some extent so 
used, yet by far its greater usefulness lies in its local service. 

The telegraph has one line, consisting of one or more wires, 
passing through a city. 

The telephone has a central office and exchange connected 
with a network of wires covering every portion of the city, 
large or small. 

The telegraph, under modern conditions, has one general 
line, along the railroad right-of-way. 

The telephone has a line to the home, the shop, the. business 
house, the bank, the law office, the country store, the cotton 
gin, the blacksmith shop—in a word, to every place where men 
live or work. 

In a final word, quoting an eminent law compilation, ‘ ‘ strictly 
speaking the telegraph and telephone are different and clearly 
distinguishable ’’ (2). 

(2). Cyc., Vol. 37, page 1068. See also Tel. Co. v. Nashville, 
101 S. W. Rep., 770. 



CHAPTER III. 


OWNERSHIP. 

Who may own. —In Texas a telephone line may be owned or 
operated and charges made for such service by an individual, 
association of persons, firm, partnership or private corporation, 
there being nothing in the law inhibiting such ownership. 

Power of eminent domain conferred only on corporations.— 
None save a corporation, however, has any right to exercise the 
power of eminent domain and without the right to exercise this 
power there can be no condemnation of right-of-way. Hence, 
privately owned lines are necessarily quite limited in the scope 
of territory covered, though there are many hundreds of such 
lines in the State, serving vastly useful purposes in their re¬ 
stricted way. 

Foreign corporation may engage in telephone business. —A 

foreign corporation may engage in the telephone business in 
Texas by obtaining a permit from the Secretary of State. 

Statute authorizing creation of telephone corporations. —Sub¬ 
division 8, of Article 1121, Revised Civil Statutes of 1911, in 
terms authorizes the creation of a corporation to engage in the 
telephone business. 


CHAPTER IV. 

TAXATION. 

Ad valorem tax. —For ordinary taxation purposes, such as 
road, school, etc., -the telephone companies’ properties are tax¬ 
able locally, that is, within the county, district, precinct or city 
or town where located, and upon an ad valorem or value basis 
as other property. 

Gross receipts tax or occupation tax. —In addition to the or¬ 
dinary tax levied upon other property, a telephone company 
must pay what is termed a gross receipts tax or occupation tax, 
which amounts to one and one-half of one per cent, of the total 
receipts from business. This tax is payable quarterly on the 
first days of January, April, July, and October of each year, 
to the State Treasurer. (1) 

The statute providing for such gross receipts tax, in its ap¬ 
plication to telephone companies, is as follows: 

Report to be made to Comptroller. —Article 7382, Revised 
Civil Statutes, 1911. Each and every individual, company, cor¬ 
poration or association owning, operating, managing or con¬ 
trolling any telehpone line or lines or any telephones within 
this State, and charging for the use of the same, shall make 
quarterly, on the first days of January, April, July, and Octo¬ 
ber of each year, a report to the comptroller of public accounts, 
under oath of the individual or of the president, treasurer or 
superintendent of such company, corporation or association, 
showing the gross amount received from all business within this 
state during the preceding quarter, in the payment of charges 
for the use of its line or lines, telephone and telephones, and 
from the lease or use of any wires or equipment within this state 
during said quarter. Said individuals, companies, corporations 
and associations, at the time of making said report, shall pay 
to the treasurer of the State of Texas an occupation tax, for 
the quarter beginning on said date, equal to one and one-half 
per cent, of said gross receipts, as shown by said report. 


(1) See also Chapter 3, Title 126, Revised Civil Statutes, 1911, 
as to franchise taxes. 



8 


Texas Telephone Laws. 


Fractional part of quarter taxable. —Article 7385. If any 
individual, company, corporation, firm or association, in this 
chapter mentioned, shall begin and engage in any business for 
which there is an occupation tax herein imposed, on or after 
the beginning day of the quarter for which said tax is imposed, 
then, and in all such cases, the amount of such tax for said 
beginning quarter shall be and is hereby fixed at the sum of 
fifty dollars, payable to the treasurer of the State of Texas in 
advance, but for the next succeeding quarter, and all other 
succeeding quarters, the tax shall be determined by reports to 
the comptroller of public accounts of the business for the pre¬ 
ceding quarter, or part thereof, as herein otherwise in this 
chapter provided; and reports and payments of such tax shall 
be made subject to all other provisions of this chapter. 

Penalty for failure to report. —Article 7386. Any person, 
company, corporation or association, or any receiver or receiv¬ 
ers, failing to make report for thirty days from the date when 
said report is required by this chapter to be made, shall forfeit 
and pay to the State of Texas a penalty not exceeding one 
thousand dollars. 

Penalty for failure to pay tax. —Article 7387. Any person, 
company, corporation or association, or any receiver or receiv¬ 
ers, failing to pay any tax for thirty days from the date when 
said tax is required by this chapter to be paid, shall forfeit 
and pay to the State of Texas a penalty of ten per cent upon 
the amount of such tax. 

Attorney General to bring suit for penalties. —Article 7388. 
The penalties provided for by this chapter shall be recovered 
by the attorney general in a suit brought by him in the name 
of the State of Texas; and venue and jurisdiction of such suit 
is hereby conferred upon the courts of Travis county, Texas. 

Permit to do business not granted until tax is paid. —Article 
7389. No individual, company, corporation or association, fail¬ 
ing to pay all taxes imposed by this chapter, shall receive a per¬ 
mit to do business in this state, or continue to do business in 
the state, until the tax hereby imposed is paid. The receipt 
of the treasurer of the State of Texas shall be evidence of the 
payment of such tax. 

Tax is in addition to all other taxes. —Article 7390. Except 


Texas Telephone Laws. 


9 


as herein stated, all taxes levied by this chapter shall be in 
addition to all other taxes now levied by law; provided, that 
nothing herein shall be construed as authorizing any county or 
city to levy an occupation tax on the occupations and business 
taxed by this chapter. 

Additional reports may be required. —If for any reason the 
comptroller of public accounts is not satisfied with any report 
from any such person, company, corporation, co-partnership or 
association, he may require additional or supplemental reports 
containing information and data upon such matters as he may 
need or deem necessary to ascertain the true and correct 
amount of all taxes due by any such person, firm, or corpora¬ 
tion. Every statement or report required by this chapter shall 
have affixed thereto the affidavit of the president, vice presi¬ 
dent, secretary, or treasurer of the person, corporation, co- 
partenrship or association, or one of the persons or members 
of the partnership making the same, to the effect that the 
statement is true. The comptroller shall prepare blanks to 
be used in making the reports required by this chapter. 

Books subject to inspection and examination. —Article 7392. 
If the comptroller has reason to believe, or does believe, that 
any individual, company, corporation, association, receiver or 
receivers, subject to the provisions of this chapter, has made a 
false return or has failed or omitted to make a full return of 
gross receipts, or other statement of business done, required 
by any of the provisions of this chapter, he shall report the 
same in writing to the governor; and it shall be the duty of 
the governor to immediately require the revenue agent of the 
State of Texas to examine any books, papers, documents, or 
other records or evidence showing or tending to show such un¬ 
lawful act or omission. Said revenue agent shall check the re¬ 
port made with such books, papers, documents or other records 
or evidence, and make his report to the comptroller; and, if it 
appears from said report that any false or incorrect return has 
been made, or that any individual, or the president, treasurer or 
superintendent of any company, corporation or association, or 
any member of any firm required by this chapter to make re¬ 
ports, has failed or omitted to make a full return, as required 
by law, then the comptroller shall notify such individual, or the 
president, treasurer or superintendent of any company, cor- 


10 


Texas Telephone Laws. 


poration or association, or receiver or receivers of any com¬ 
pany, corporation or association, or any member of any firm, 
to make forthwith an additional or supplemental report; and, 
if any such individual or the president, treasurer or superin¬ 
tendent of any company, corporation or association, or any 
member of a firm, or any receiver or receivers of any company, 
corporation or association making- said original report, shall 
fail or refuse to make said additional or supplemental report, 
he shall be guilty of a misdemeanor, and on conviction shall be 
punished as provided in the Penal Code; and venue of such 
prosecution is fixed in Travis county, Texas. 

If it appears from the report of the state revenue agent, or 
if the comptroller has reason to believe or does believe, that 
any individual, or any president, treasurer or superintendent 
of any company, corporation or association, or any receive? of 
any corporation or association, or any member of any firm, 
has wilfully and deliberately made a false report, the comptrol¬ 
ler shall report the matter to the grand jury of Travis county, 
Texas, for its action; and venue of any offense arising out of 
such transaction is hereby fixed in Travis county, Texas. Said 
state revenue agent, in the performance and discharge of the 
duties imposed upon him by this article, shall have the right to 
examine, either by himself or by any person acting under his 
direction, any books, papers, documents, records or evidence 
which he may believe material and proper to examine. 

Tax upon poles may be levied by city.— The city council of 
the city of Dallas by Ordinance levied a tax of $2.00 per annum 
on each and every telephone pole belonging to one telephone 
company doing business in that city. There was a suit to col¬ 
lect the tax (2) and judgment for the city. The Court of Civil 
Appeals affirmed the judgment of the trial court and by writ 
of error the case was taken on to the Supreme Court, where it 
is pending at this time. 

Tax can not be levied for use of streets. —The city of Gaines¬ 
ville levied a gross receipts tax upon one company as a condi¬ 
tion for the use of the streets of the city. Collection of the 
tax was resisted and the Court of Civil Appeals held in sub¬ 
stance that the city was without right to collect a tax in this 


(2) Tel. Co. v. Dallas, 174 S. W. Rep., 636. 



Texas Telephone Laws. 


11 


manner, that is, as consideration for use of the streets (3). 
The reasoning of the court is not entirely clear but this seems 
to be the decision announced. Also, it seems to make no dis¬ 
tinction between the legal status of local and long distance com¬ 
panies with reference to city regulation or control (4). 

Tax may be levied upon wire mileage. —In the Dallas case 
above cited, reference is also made to the terms of the ordinance 
levying a tax of 25 cents for each mile of line. In the trial the 
jury found the tax to be unreasonable, hence no judgment was 
allowed upon it, but the court do not declare it to be void as 
a matter of law. 

(3) Tel. Co. v. Gainesville, 141 S. W. Rep., 1044. 

(4) Tel. Co. v. Brownwood, 157 S. W. Rep., 1163. 


4 



CHAPTER V. 


CONSTRUCTION OF LINE. 

Power of “eminent domain ’* defined. —The “power of emi¬ 
nent domain” is the right to take private property for public 
use, compensation therefor having been made (1). In plainer 
language, and for the purposes of this volume, it may be de¬ 
scribed as that function of government which justifies a private 
corporation in taking the land of a private individual for its 
right-of-way, after paying him for it. 

Where power lies. —In Texas this power resides in the legis¬ 
lature (2). 

To whom may be delegated. —And it may be delegated to 
private corporations (3). 

Can be exercised only under legislative grant. —There is no 
right, inherent or otherwise, in any public or private corpora¬ 
tion or private individual, to exercise the power of eminent 
domain. It can be exercised only by virtue of legislative en¬ 
actment. Being against common right, it can not be implied or 
inferred, but must be given in express terms or by necessary 
implication (4). V 

Exercise of power indispensable. —Without the exercise of 
this power, public works of the nature of railroads, telegraphs, 
telephones, pipe lines, etc., could hardly be built, for the reason 
that the whole enterprise would be at the mercy of any single 
landholder along its proposed route—obviously a most difficult 
condition. 

Status of local telephone company. —As stated, the power ex¬ 
ists only where conferred by legislative enactment, and the 

(1) Words and Phrases, Vol. 3, page 2365. 

“The property may be appropriated by the legislature or the power 
of appropriating it may be conferred upon private corporations to 
be exercised by them in the execution of work in which the public is 
interested.” (Words & Phrases, Vol. 3, page 2365.) 

See also Austin v. Nalle, 102 Texas, 536, and authorities. 

(2) Watkins v. Walker County, 18 Texas, 585. 

(3) Travis County v. Trogdon, 88 Texas, 302; 31 S. W. Rep., 358. 

(4) Bridge Co. v. McLane, 28 S. W. Rep., 454; 8 T. C. A., 665. 



Texas Telephone Laws. 


13 


legislature having failed to confer it upon local telephone com¬ 
panies, clearly such companies have no right to its exercise (5). 

This does not mean that local companies can not be given the 
right to use streets, alleys, roads, etc., of a city or town or rural 
community, but only that the right has not been conferred 
upon such companies to take private lands for their right- 
of-way. Such a company can not cross the property of a 
private citizen without his permission, nor the roads or streets 
without the permission of the city council or commissioners 
court. The commissioners court may grant the use of the 
country road, or the city governing body may grant the use of 
the streets and alleys, but the local company can not use the 
highways without their permission. 

Power is conferred upon telegraph corporations. —By statute 
it is expressly provided that telegraph corporations may make 
use of this power of the government to obtain right of way, the 
provisions being as follows: 

Article 1231, R. S., 1911. Corporations created for the pur¬ 
pose of constructing and maintaining magnetic telegraph lines 
are authorized to set their poles, piers, abutments, wires and 
other fixtures along, upon and across any of the public roads, 
streets and waters of this state, in such manner as not to in¬ 
commode the public in the use of such roads, streets and waters. 

Article 1232, R. S., 1911. Such companies are also authorized 
to enter upon any lands, whether owned by private persons in 
fee or in any less estate, or by any corporation, whether ac¬ 
quired by purchase or by virtue of any provision in the charter 
of such corporation, for the purpose of making preliminary 
surveys and examinations with a view to the erection of any 
telegraph lines, and from time to time to appropriate so much 
of said lands as may be necessary to erect such poles, piers, 
abutments, wires and other necessary fixtures for a magnetic 
telegraph, and to make such changes of location of any part of 
said lines as may from time to time be deemed necessary, and 
shall have a right of access to construct said line, and, when 
erected, from time to time as may be required, to repair the 

f5) Brownwood v. Tel. Co., 157 S. W. Rep., 1163. In this 
decision the court expressly declines to discuss the eminent domain 
status of local companies. See also Athens v. Tel. Co., 163 S. W. 
Rep., 371. 



14 


Texas Telephone Laws. 


same, and may proceed to obtain the right of way and to con¬ 
demn lands for the use of the corporation in the manner pro¬ 
vided by law in the case of railway corporations (6). 

Article 1233, R. S., 1911. No corporation shall have power 
to contract with any owner of land for the right to erect and 
maintain a telegraph line over his lands to the exclusion of other 
companies. 

Power given telegraph companies also given to long distance 
telephone companies. —While the language used in the three 
statutory articles mentions only telegraph and not telephone 
corporations, yet it has been held time and again by our courts 
that the word telegraph in this connection also includes tele¬ 
phone, and that the powers thus conferred upon telegraph com¬ 
panies are likewise conferred upon long distance telephone 
companies (7). In this connection wherever the expression 
telephone company, or the word company, is used it is intended 
to designate a long distance company unless otherwise stated. 

Principal parties to eminent domain litigation. —So far as I 
have been able to discover, the principal litigation over tele¬ 
phone rights-of-way has been between the telephone companies 
on the one hand and the railroad companies and the city or 
town on the other. 

Foreign corporation may obtain right of way. —A foreign 

(6) See pages 18-24, condemnation proceedings. 

(7) Brownwood v. Tel. Co., 157 S. W. Rep., 1163: 

“We conclude that, when the legislature of 1891 enacted the law 
in its present form, it intended to express that ‘telephone’ was within 
the broad meaning of ‘telegraph’ and that corporations created under 
Subdivision 8, Article 641, Revised Statutes, are ‘created for the 
purpose of constructing and maintaining magnetic telegraph lines’ 
and are authorized by Article 699 (Article 1232, R. S., 1911), to 
condemn right of way for their lines. We could cite many authori¬ 
ties in support of that conclusion but deem it unnecessary, and will 
proceed upon the assumption that the language of the statute in¬ 
cludes long-distance telephones, but we express no opinion as to the 
rights of local telephone companies or the local business of long¬ 
distance companies.” 

Ry. Co. v. Tel. Co., 45 S. W. Rep., 151; 18 T. C. A., 500; City v. 
Tel. Co., 106 S. W. Rep., 915; 48 T. C. A., 16; Ry. Co. v. Tel. Co., 55 
S. W. Rep., 117; 93 T., 313; Townsite Co. v. Tel. Co., 164 S. W. Rep., 
50; Plaster Co. v. Plaster Co., 167 S. W. Rep., 183. 

See also Townsite Co. v. Tel. Co., 164 S. W. Rep., 50. 



Texas Telephone Laws. 


15 


telephone corporation which has secured from the State of 
Texas a permit to do business therein may exercse the power 
eminent domain in Texas in all cases where corporations created 
under the laws of Texas may exercise this power (8). 

Telephone line may be built along railroad right-of-way. —A 
telephone company may condemn and proceed to occupy with 
its lines a right-of-way of its own along a railroad right-of- 
way (9). And it is not necessary for the company to show 
that there is no other practicable route; a railroad right-of- 
way is subject to condemnation for this purpose just as is any 
other property (9). 

When condemnation of railroad right-of-way not allowed.— 

If, however, the condemnation of property already condemned 
to another public use, such as a railroad right-of-way, will de¬ 
stroy or impair the first use, then such second condemnation 
will not be permitted (9). 

Line may be built pending appeal. —The statute provides that 
telegraph companies (and telephone companies, according to 
the courts’ interpretation) shall proceed in the condemnation 
of a right-of-way in the same manner as a railroad company 
(6), hence such companies have the same rights, powers and 
privileges as to entering on lands as railroad companies (10), 
and after commissioners of condemnation have made their re¬ 
port of award, the company may, by paying costs, depositing 
double amount of damages in court and giving the bond re¬ 
quired by statute proceed to construct their line pending final 
decision of the case (11). 

No notice required of hearing except that provided in 
statute. —The only notice required to be given is that outlined 
to be given by the commissioners to each party of the time and 
place of the hearing. It is not necessary for the county judge 
to give any notice of an application for the condemnation of 
land (12). 

(8) Ry. Co. v. Tel. Co., 57 S. W. Rep., 312; Ry. Co. v. Tel. Co., 
56 S. W. Rep., 201; Ry. Co. v. Tel. Co., 61 S W. Rep., 406; 25 T. 
C. A., 488. 

(9) Tel. Co. v. Ry. Co., 52 S. W. Rep., 106; Tel. Co. v. Ry. Co., 
71 S. W. Rep., 270. 

(10) Ry. Co. v. Tel. Co., 55 S. W. Rep., 117; 93 Tex., 313. 

(11) Ry. Co. v. Tel. Co., 61 S. W. Rep., 406; 25 T. C. A., 488. 

(12) Ry. Co. v. Tel. Co., 45 S. W. Rep., 151; 18 T. C. A., 500. 



16 


Texas Telephone Laws. 


Elements of damages for condemnation of right-of-way.— 

“The court correctly charged the jury to allow the railroad 
the decreased value to it of the use of its right-of-way for its 
purpose that might result from the construction and main¬ 
tenance of the telephone company for its right-of-way. The 
charge given was correct (13).” 

‘ ‘ The damages that might accrue in the future to the railroad 
by the telephone company being compelled in order to reach, 
keep up, and operate its line, to interfere with the fence of the 
railroad along its right-of-way, could not be considered in de¬ 
termining the amount of damages to be awarded now. The 
judgment in this case would not be a bar to an action to recover 
such damages, if the same should ever accrue. It may never 
be necessary for the telephone company to injure the fence of 
the railroad but if it should become necessary and the injury 
occur, then an action might be maintained by the railroad for 
the damages arising therefrom (13).” 

The measure of damages is the damages sustained by the 
railroad company by having the telephone poles placed along 
its right-of-way. It is not a question of the market value of 
the land (14). 

Nor is it a question of what use the company might make of 
the land; of benefits conferred upon it (14). 

Thus, the extra cost that the railroad might incur by rea¬ 
son of having to clear away from the telephone poles the grass 
when burning off its right of way, could not be considered an 
element of damages (14). 

Description of land to be taken. —No iron-clad rule can be 
laid dowm as to description of the land or premises sought to 
be entered or condemned, but it seems that if the description 
is sufficient to enable a surveyor to go on the ground and locate 
the identical tract in question it will be held sufficient (15). 

The certainty required is of the same nature as that required 
in conveyances of land (15). 

Right to use of streets. —Article 1231 provides that certain 

(13) Ry. Co. v. Tel. Co., 57 S. W. Rep., 312. 

(14) Tel. Co. v. Ry. Co., 52 S. W. Rep., 106. 

Tel. Co. v. Ry. Co., 52 S. W. Rep., 86. 

See generally all citations under (8), (9), (10), (11), (12). 

(15) Ry. Co. v. Tel. Co., 45 S. W. Rep., 151; 18 T. C. A., 500. 



Texas Telephone Laws. 


17 


corporations may use the streets of cities for their lines, etc. 
Article 1235 reads as follows: 

“The corporate authorities of any city, town or village 
through which the line of any telegraph corporation is to pass 
may, by ordinance or otherwise, specify where the posts, piers, 
or abutments shall be located, the kind of posts that shall be 
used, the height at which the wires shall be run; and such 
company shall be governed by the regulations thus prescribed; 
and, after the erection of said telegraph lines, the corporate 
authorities of any city, town or village shall have power to 
direct any alteration in the erection or location of said posts, 
piers or abutments, and also in the height at which the wires 
shall run, having first given such company or its agents oppor¬ 
tunity to be heard in regard to such alteration.” 

The use of the word “telegraph” includes the word “tele¬ 
phone” (7). 

It will be observed that Article 1231 provides that the line 
shall be constructed “in such manner as not to incommode 
the public in the use of such road, streets or waters. Also, that 
Article 1235 gives a city or town the right to point out the loca¬ 
tion for poles, etc. 

Statutory Articles 1231 and 1235 do not conflict.— 

There is no conflict between these articles. One provides 
that the corporation may erect its lines through a city or town, 
and the other gives the city or town authority to regulate the 
mode and manner of building, the location, height of wires, etc. 

Right of telephone to pass through town is absolute. —“It is 
apparent,” says the Supreme Court (16), “that the right of 
the telephone company to pass through the city or town, over 
and upon its streets, is absolute, and a city has no authority to 
deny that right. The interest of the public in convenient ser¬ 
vice by such means of communication is the basis of the grant, 
and is superior to any private interest. ’’ 

But city or town may enforce reasonable regulations. —“On 
the other hand, the interest of the city in the manner in which 
the corporation exercises its right is the foundation of the 

(16) Brownwood v. Tel. Co., 157 S. W. Rep., 1163; Texarkana v. 
Tel. Co., 106 S. W. Rep., 915; Athens v. Tel. Co., 163 S. W. Rep., 
371; Townsite Co. v. Tel. Co., 164 S. W. Rep., 50; Tel. Co. v. Dallas, 
174 S. W. Rep., 636. 



18 


Texas Telephone Laws. 


authority vested in the city to control the occupancy and use of 
the streets by such corporations, and a reasonable exercise of 
the power is equally absolute. The limitation embodied in the 
grant to the corporation would alone be sufficient to subject 
it to a reasonable restraint. But the grant to the authorities of 
the city by Article 1235 invests the municipal government with 
power to enforce any reasonable regulations as to the use of 
the streets by the city, but such city can not use its power to 
regulate in such manner as to deny to corporations the right 
to pass through the town and in so doing to use the streets in 
such way as not to incommode the public.” 

Company not required to accept city ordinances. —But a city 
has no authority to require a company to accept its ordinances 
as a condition precedent to entering the city. The city may 
enforce its reasonable ordinances, whether acceptable to the 
telephone company or not, but the company is not bound to 
formally accept same before entering the city (16). 

Procedure under railroad condemnation statute. —As will be 
noted in the language of Article 1232, the procedure for con¬ 
demnation of a telegraph right-of-way is the same as is pro¬ 
vided for railroad companies. This latter is outlined in Chapter 
8, Title 115, R. S., 1911, the part essential to an understanding 
being as follows: 

Article 6505. Shall not enter except for lineal survey. —No 

railroad company shall enter upon, except for a lineal survey, 
any real estate whatever, the same being private property, for 
the purpose of taking and condemning the same, or any material 
thereon, for any purpose whatever, until the said company shall 
agree with and pay the owner thereof all damages that may 
be caused to the lands and property of said owner by the con¬ 
demnation of said real estate and property, and by the construc¬ 
tion of such road. 

Article 6506. Failure to agree; statement to be filed with 
county judge.- —If such company and said owner can not agree 
upon the damages, it shall be the duty of said company to state 
in writing the real estate and property sought to be condemned, 
the object for which the same is sought to be condemned, the 
name of the owner thereof and his residence, if known, and 
file the same with the county judge of the county in which such 


Texas Telephone Laws. 


19 


property, or a part thereof, is situated; provided, if the owner 
resides in either county in which a portion of the land is situ¬ 
ated, the same shall be filed in the county of his residence. 

Article 6507. Regular judge disqualified; special judge ap¬ 
pointed. —Where any petition or statement for condemnation 
is presented to a county judge, as provided in the preceding 
article, and such judge shall be disqualified to act by reason of 
any of the matters mentioned in Article 1736, he shall indorse 
his certificate of such disqualification upon such petition, or 
statement for condemnation, and file the same with the county 
clerk, who shall make a certified copy of such petition, or 
statement for condemnation, and of such indorsement thereon, 
and forward the same forthwith to the governor; whereupon 
the governor shall proceed to appoint some person learned in 
the law to act as special judge, who shall have and exercise 
all of the powers conferred upon the county judge by this chap¬ 
ter, and shall proceed to make the appointment of commission¬ 
ers as provided by the succeeding article upon the said petition 
or statement for condemnation already filed, and in the event 
objections shall be filed by either party to the award of com¬ 
missioners, the person so appointed by the governor shall pre¬ 
side at all trials of the cause in the county court until such time 
as the disqualification of the county judge may have ceased; 
provided that any time before such disqualification is so certi¬ 
fied to the governor, the parties by agreement may select such 
special judge. 

Article 6508. County judge shall appoint commissioners.— 

Upon the filing of such statement, the county judge shall forth¬ 
with, either in term time or in vacation, appoint three disinter¬ 
ested freeholders of said comdy as special commissioners to 
assess said damages, giving preference to those that may be 
agreed on between said corporation and said owner. 

Article 6509. Commissioners shall be sworn. —The said com¬ 
missioners shall be sworn by the county judge, or by any officer 
authorized by law to administer oaths, to assess said damages 
fairly and impartially and in accordance with law. 

Article 6510. Commissioners shall select a day and place of 
hearing. —Said commission shall, without delay, appoint a day 
and place for hearing said parties; and the day appointed shall 


20 


Texas Telephone Laws. 


be the earliest practicable day, and the place selected for such 
hearing shall be as near as practicable to the property in con¬ 
troversy, or at the county seat of the county in which the prop¬ 
erty is situated. 

Article 6511. Shall issue written notice to parties. —The com¬ 
missioners shall issue a notice in writing to each of the parties, 
notifying them of the time and place selected for the hearing. 

Article 6512. Manner of serving notice. —Said notice shall be 
served upon said parties at least five days before the day of 
hearing, exclusive of the day of service, and shall be served by 
delivering a copy of the same to the party, his agent or attor¬ 
ney, and may be served by any person competent to testify. 

Article 6513. Return of notice. —The person making such 
service shall return the original notice to said commissioners, 
or any one of them, on or before the day set for the hearing, 
with his return in writing thereon, stating how and when the 
same was served. 

Article 6514. When the property belongs to estate or to a 
minor, notice shall be served on whom. —When the property in 
controversy is the property of the estate of a deceased person, 
or of a minor, and such estate had a legal representative, or 
such minor has a guardian, the notice shall be served upon such 
legal representative, or guardian. 

Article 6515. Property of non-resident, unknown owner, or 
one who secretes himself. —When the property in controversy 
belongs to a non-resident of this state, or to an unknown per¬ 
son, or to a person whose residence is unknown, or who secretes, 
himself so that the process of law can not be served upon him, 
such notice may be served upon such owner by publication in 
the same manner as is provided for service of citation in Article 
1874 of the Revised Civil Statutes. 

Article 6516. Proceedings of commissioners, —When service 
of notice has been perfected, the commissioners shall, at the 
time and place appointed, or at any other time and place to 
which said hearing has been adjourned, proceed to fully hear 
said parties; but if, upon the day set for the hearing, the service 
of notice has not been perfected the said hearing shall be 
postponed from time to time until such notice has been per¬ 
fected. 


Texas Telephone Laws. 


21 


Article 6517. Power of commissioners, —Said commissioners 
for the purpose mentioned in this chapter shall have power to 
compel the attendance of witnesses and the production of tes¬ 
timony, and to administer oaths and punish for contempt as 
fully as is provided by law for the district or county court. 

Article 6518. Rule of damages. —Said commissioners shall 
hear evidence as to the value of the property sought to be con¬ 
demned, and as to the damages which will be sustained by the 
owner thereof by reason of such condemnation, and as to the 
benefits that will result to the remainder of such property be¬ 
longing to such owner, if any, by the construction and opera¬ 
tion of such railroad, and shall according to this rule assess 
the actual damage that will accrue to such owner by reason of 
such condemnation. 

Article 9519. Same subject. —When the whole of a person’s 
real estate is condemned, the damages to which he shall be en¬ 
titled shall be the market value thereof in the market in which 
th same is located. 

Article 6520. Same subject. —When only a portion of a per¬ 
son’s real estate is condemned, the commissioners shall estimate 
the injuries sustained and the benefits received thereby by the 
owner as to the remaining portion of such real estate; whether 
such remaining portion is increased or diminished in value by 
such condemnation, and the extent of such increase or diminu¬ 
tion, and shall assess the damages accordingly. 

Article 6521. Injuries and benefits which shall not be es¬ 
timated. —In estimating either the injuries or the benefits, as 
provided in the preceding article, those injuries or benefits 
which the owner of such real estate sustains or receives in 
common with the community generally, and which are not 
peculiar to him and connected with his ownership, use and en¬ 
joyment of the particular parcel of land, shall be altogether 
excluded from such estimate. 

Article 6522. Assessment shall be in writing, dated, signed, 
etc. —When the said commissioners shall have assessed the dam¬ 
ages, they shall reduce their decision to writing, stating therein 
the amount of damages due to the owner of such real estate, if 
any be found to be due, and shall date the same and sign it, and 
shall file the said assessment, together with all other papers 
connected with the case, with the county judge without delay. 


22 


Texas Telephone Laws. 


Article 6523. Other commissioners may be appointed, when. 

—Should the said commissioners, or either of them, from any 
cause be unable or fail to act as such, the county judge may at 
any time appoint another commissioner or commissioners to 
supply the place or places of those who are unable or who fail 
to act. 

Article 6524. Pay of commissioners. —Commissioners ap¬ 
pointed under this chapter shall be entitled to receive for their 
services three dollars each for every day they may be engaged 
in the performance of their duties as such commissioners, and 
they may withhold their decision unutil their said fees are paid 
to them. 

Article 6525. Corporation shall pay expenses of serving 
notice. —The railroad company seeking to condemn property 
shall defray all expenses of serving notice upon the owner of 
such property, but shall be entitled to recover said expenses 
from such owner in case it shall be decided that said owner 
shall pay the costs of the proceeding. 

Article 6526. Commissioners shall make out cost bill, etc.— 
The commissioners may adjudge the costs against either party, 
and shall make out a statement in writing of all the costs which 
have accrued before them, and shall state therein against which 
party the said costs have been adjudged, and shall sign the 
same and deliver it, with the other papers of the cause, to the 
county judge. 

Article 6527. Either party, if dissatisfied with decision, may 
remove cause, etc. —If either party be dissatisfied with the de¬ 
cision of such commissioners, he may, within ten days after the 
same has been filed with the county judge, file his opposition 
thereto in writing, setting forth the particular cause or causes 
of his objection; and thereupon the adverse party shall be cited, 
and said cause shall be tried and determined as in other civil 
causes in said court. 

Article 6528. Decision shall be made the judgment of the 
court, when. —If no objections are filed to such decision within 
the time prescribed in the preceding article, the county judge 
shall cause the said decision to be recorded in the minutes of 
his court, and shall make the same the judgment of said court, 
and may issue v'he necessary process to enforce the same. 


Texas Telephone Laws. 


23 


Article 6529. How costs awarded. —The costs of the proceed¬ 
ings before the commissioners and in the court shall be deter¬ 
mined as follows, to wit: If the said commissioners shall award 
greater damages than the said company offered to pay before 
the proceedings commenced, or if objections are filed to the 
decision in the county court under the provisions of this chap¬ 
ter, and the judgment of the court is for a greater sum than 
the amount awarded by the commissioners, then the said com¬ 
pany shall pay all costs; but if the amount awarded by said 
commissioners as damages, or if the judgment of the county 
court shall be for the same or less amount of damages than the 
amount offered by the company before proceedings were com¬ 
menced, then the costs shall be paid by the owner of the 
property. 

Article 6530. Damages must be paid before property is 
taken. —In no case shall such corporation be entitled to enter 
upon and take the property condemned, without first having 
paid whatever amount of damages and costs may have been 
awarded or adjudged against it by such commissioners, or de¬ 
posited money to cover the same in the court wherein such con¬ 
demnation proceedings are pending. But if the plaintiff in 
the condemnation proceedings should desire to enter upon and 
take possession of the property sought to be condemned, pend¬ 
ing litigation, it may do so at any time after the award of the 
commissioners, upon the following conditions, to wit: 

First. It shall pay to the defendant the amount of dam¬ 
ages awarded or adjudged against it by the commissioners, or 
deposit the same in money in court, subject to the order of 
the defendant, and also pay the costs awarded against it. 

Second. In addition thereto, it shall deposit in said court 
a further sum of money equal to the amount of the damages 
awarded by the commissioners and which shall be held, together 
with the award itself, should it be deposited in court instead of 
being paid, exclusively to secure all damages that may be 
awarded or adjudged against the plaintiff; and it shall also 
execute a bond with two or more good and solvent sureties, to 
be approved by the judge of the court in which such condem¬ 
nation proceedings are pending, conditioned for the payment of 
any further costs that may be adjudged against it, either in the 
court below or upon appeal. 


24 


Texas Telephone Laws. 


Third. Should it be determined on final decision of the case 
that the right to condemn the property in question does not 
exist, the plaintiff shall surrender possession thereof, if he has 
taken possession pending litigation, and the court shall so 
adjudge and order a writ of possession for the property in 
favor of the defendant, and the court may also inquire what 
damages, if any have been suffered by the defendant by rea¬ 
son of the temporary possession of the plaintiff, and order the 
same paid out of the award or other money deposited; provided, 
that in any case where the award paid the defendant or ap¬ 
propriated by him exceeds the value of the property as de¬ 
termined by the final judgment, the court shall adjudge the 
excess to be returned to the plaintiff. 

If the cause should be appealed from the decision of the 
county court, the appeal shall be governed by the same law as 
in other cases; except the judgment of the county court shall 
not be suspended thereby. The rules hereinbefore laid down 
for governing railroad corporations shall likewise apply to all 
persons and corporations having the right of eminent domain. 

Article 6534. Right of way vested by judgment of the court. 
—Whenever the right of way has been acquired, as hereinbefore 
provided, the judgment of the court shall vest such right in 
the company so acquiring same. 


CHAPTER VI. 


RATES. 

But little litigation involving the question of rates and 
charges has been had in Texas, barely enough, in fact, to justify 
attention to the subject. 

Subject to local control. —The legislature has left the matter 
solely under local control, nearly every city charter containing 
a provision that the city council shall have power to fix rates, 
and there being no general law applicable. 

Right of city to fix rates. —In one case (1) where the rate 
question came before the Court of Civil Appeals at Amarillo 
counsel for the company admitted valid an ordinance providing 
that rates should automatically increase with increase in the 
number'of telephone subscribers. This case, however, is not 
decisive of any question of law, being decided solely on an issue 
of fact. 

Rates may be prescribed in franchise. —Where the original 
grant of a franchise to conduct a telephone business contained 
a provision that monthly rentals should not exceed a certain 
figure, the court held that charges could not be advanced by 
the company above the stipulated price. And the fact that the 
franchise had changed hands made no difference, assignee of 
the original grantee being bound (2). 

Rates adopted by initiative and referendum. —The legislature 
may delegate to a city, in its charter, the right to submit the 
question of telephone charges to a referendum vote (3). 

Rates adopted by city not applicable outside thereof. —Rates 
adopted by a city or town do not apply to subscribers of a 
company doing business in such city or town, who live outside 
the corporate limits (3). 

May provide discounts for prompt payment. —The Dallas 

ordinance, adopted by a referendum vote, provided that 
bills for telephone service should become due on the first day 

(1) Amarillo v. Tel. Co., 142 S. W. Rep., 638. 

(2) Athens v. Tel. Co., 163 S. W. Rep., 371. 

(3) Dallas v. Tel. Co., 131 S. W. Rep., 80. 



26 


Texas Telephone Laws. 


of the month following the rendition of the service, and should 
be subject to a discount of 10 per cent if paid on or before 
the 10th. This provision was held valid and constitutional (3). 

May require extension of credit. —The same ordinance was 
assailed on the ground that it allows patrons an enforced credit 
at the hands of the company, namely, that bills were not pay¬ 
able until the first of the month following rendition of the 
service, but this provision also was held valid (3). 


CHAPTER VII. 


CONSOLIDATIONS. 

Right to consolidate exists only under statute. —The right of 
one corporation to consolidate, or unite with, or absorb, another 
can exist only when conferred by statute, and in this state it 
is expressly provided by statute that a telephone corporation 
may consolidate, etc., with another by purchase, lease or other¬ 
wise, in the manner outlined in the statutory articles repro¬ 
duced hereinafter. (Articles 1234 and 1236, Revised Civil 
Statutes, 1911.) The principle articles were enacted at the 
regular session of the thirty-third legislature in 1913, being 
according to that act Articles 1234a and 1236a. (See Acts Reg. 
Ses. 33rd Legislature, page 92.) 

Private wire not covered by statute. —Under the decision of 
the appellate court, in the Kersh case (66 S. W. Rep., 74; 27 
T. C. A., 127) it appears that the right to lease or consolidate, 
etc., does not exist in favor of a mere private wire, but only 
as to organized corporations, and it would seem that a cor¬ 
poration has no right to enter into a lease contract for a mere 
private line, the language of the later enacted law being ‘‘ owner 
of a telephone exchange,” etc. 

The statutory articles above mentioned are as follows: 

Article 1234. Company may own line in or out of state, and 
may join with other company. —Any corporation created as 
herein provided may contract, own, use and maintain any line 
or lines of telegraph, whether wholly within, or wholly or 
partly beyond the limits of this state, and shall have power 
to lease or attach to the line or lines of such corporation other 
telegraph lines, by lease or purchase, and may join with any 
other corporation or association in constructing, leasing, own¬ 
ing, using or maintaining their line or lines, upon such terms 
as may be agreed upon between the directors or managers of the 
respective corporatons, and may own and hold any interest in 
such line or lines, or may become lessees thereof on such terms 
as the respective corporations may agree. 

Article 1234a. Person, firm or corporation telephone ex¬ 
change may purchase or join others, etc. —Any person or firm 


28 


Texas Telephone Laws. 


or any corporation organized under the laws of the State of 
Texas owning a local telephone exchange whether wholly with¬ 
in, or partly beyond the limits of the state, shall have power 
to purchase and may join with any other individual firm or 
corporation in constructing, leasing, owning, using, or main¬ 
taining any other local telephone exchange, upon such terms 
as may be agreed upon between such persons, or the directors, 
or managers of the respective corporations, and may own and 
hold any interest in such local telephone exchange or may be¬ 
come lessees thereof on such terms as the respective persons, 
firms or corporations may agree; provided, in the case of the 
purchaser, lease or acquisition of one local telephone exchange 
by a company owning another, when both systems are operat¬ 
ing in the same incorporated city or town, the consent of such 
city or town shall be secured. 

Article 1236. Manner of consolidating telegraph company 
with another company. —Any telegraph company now organ¬ 
ized, or which may hereafter be organized under the laws of 
this state, may, at any regular meeting of the stockholders 
thereof, by vote of persons holding a majority of shares of the 
stock of such company, unite or consolidate with any other com¬ 
pany or companies now organized, or which may hereafter be 
organized, under the laws of the United States, or of any state 
or territory, by the consent of the company with which it may 
consolidate or unite; and such company so formed may hold, 
use and enjoy all the rights and privileges conferred by the 
laws of Texas on companies separately organized under the pro¬ 
visions of this title, and be subject to the same liabilities. 

Article 1236a. Manner of consolidating telephone company, 
etc. —Any telephone company now organized, or which may 
hereafter be organized under the laws of this state, owning a 
local telephone exchange may at any regular meeting of the 
stockholders thereof by vote of persons, holding a majority of 
shares of the stock of such company, unite or consolidate such 
local exchange of any other company or companies now or¬ 
ganized, or which may hereafter be organized under the laws 
of the United States, or of any state or territory by the consent 
of the company with which it may so consolidate or unite; and 
such company so formed may hold, use, and enjoy all the rights 


Texas Telephone Laws. 


29 


and privileges conferred by the laws of the State of Texas, on 
companies separately organized under the provisions of this 
Title, and be subject to the same liabilities. Provided, that 
where two or more local exchanges are operating in the same 
incorporated city or town, the consent of such city or town 
shall be secured for such consolidation. Provided further, in 
case of the purchase, lease, acquisition or consolidation of one 
local telephone exchange with another, when both systems are 
operating in the same incorporated city or town, the rates 
charged for local telephone service after such consolidation, 
shall not exceed the rates charged by the company charging 
the lowest rates in such city or town at the time of such pur¬ 
chase, lease, acquisition or consolidation, unless authorized by 
such city or town. 


CHAPTER VIII. 


PHYSICAL CONNECTIONS AND TRANSFER OF 
MESSAGES. 

Required by statute. —By Articles 1237 to 1241, inclusive, 
Revised Civil Statutes, 1911, it is provided that telephone com¬ 
panies shall under certain conditions and regulations arrange 
for physical connections and transfers of messages. These ar¬ 
ticles are set out in full hereinafter. 

Penalty for refusal to connect. —By Article 1241 it is pro¬ 
vided that a penalty of ten dollars per day may be recovered 
against any company failing to make such connection when 
ordered to do so by the city council or commissioners court. 
In the case of S. W. Tel. & Tel. Co. v. State, reported in 150 
S. W. Rep., page 604, the state recovered penalties aggregating 
$940.00 based upon alleged failure of the Southwestern com¬ 
pany to arrange for physical connection with the Paducah Tele¬ 
phone company at Childress. 

Case still pending. —The judgment of the trial court was 
affirmed by the Court of Civil Appeals and was then by the 
company taken to the Supreme Court where it is at this writing, 
having been submitted, and an opinion being looked for at an 
early date. 

Law assailed as unconstitutional. —One contention made by 
appellant and an intervener is that the whole law providing 
for physical connections, etc., is unconstitutional, in that it is 
in substance a taking (at least of the right to use) of property 
without compensation being made therefor. In another state 
a law somewhat similar in terms has been declared unconsti¬ 
tutional, and such may be the fate of the Texas law, but it is, 
of course, useless to speculate upon the possible happening of 
such a contingency. Whatever the Supreme Court may de¬ 
clare will be the law of the case. 

Statement of case.— The Paducah company and the South¬ 
western company had an agreement respecting connections and 
transfers at Childress. This agreement was cancelled and the 
parties were unable to agree on another. The Childress city 


Texas Telephone Laws. 


31 


council then ordered the two companies “to mutually maintain 
a physical connection upon the switchboard of the Southwest¬ 
ern Telegraph & Telephone Co. in the city of Childress’’ and 
directing further that the Paducah company should furnish 
at its own expense a suitable line of poles and wires to the 
Southwestern office. 

Consideration for transfer of messages. —The consideration 
for said transfer of messages was declared as follows: 

“For any and all connections of the line of the Paducah 
Telephone company with any local subscriber of the South¬ 
western Telegraph & Telephone company at Childress, Texas, 
whether inward or outward, also when connection is made on 
the line of the Paducah Telephone company and any line of 
any third party at Childress, Texas, there shall be paid by the 
Paducah Telephone company to the said Southwestern Tele¬ 
graph & Telephone company the sum of five cents for each said 
connection, and for any and all connections of the line of the 
Paducah Telephone company with the said Southwestern Tele¬ 
graph & Telephone company for any point on the said South¬ 
western Telegraph & Telephone company, other than at Chil¬ 
dress, Texas, the sum of two and one-half cents for each con¬ 
nection, whether inward or outward, as a switching charge; 
and it is so ordered. ” 

Right of city council to fix compensation. —The right of the 
city council thus to fix the compensation on messages originat¬ 
ing outside the corporate limits of the city was assailed, and 
the court on appeal intimate that the council had no such au¬ 
thority, but sustain the judgment anyhow upon the ground 
that the council did have the right to order the making of a 
physical connection. 

Not necessary to show failure to transmit messages, to en¬ 
title state to recover, when. —On appeal the Southwestern con¬ 
tended that the judgment should not be allowed to stand be¬ 
cause there was no proof that it had ever failed or refused to 
transfer any message for the other company. To this the 
court rejoined that the evidence did disclose a failure to estab¬ 
lish physical connection, etc. 

When company held not liable. —The statuute (Article 1241) 
expressly provides that a company shall not be held liable when 


32 


Texas Telephone Laws. 


prevented from establishing such connection through the fault 
or omission of another company. (See case cited above.) 

Unsuccessful effort to arrange distribution of receipts/ no 
defense. —That the companies are unable to agree upon a dis¬ 
tribution or division of the receipts is no defense in any action 
for penalties. Under the law it is the duty of such companies 
to arrange the connection described, and leave the compensa¬ 
tion or division of receipts for future adjustment. 

The statutory provisions are as follows: 

Article 1237. Corporations owning or operating lines, etc., 
shall arrange for transfers, etc., as follows. —All companies and 
corporations that own or operate telephone or telegraph lines 
for the purpose of transmitting messages from one point to 
another are hereby required to arrange for conversations or 
transfer of messages as hereinafter provided. 

Article 1238, telephone companies, etc., shall connect lines at 
common points, how, etc. —All companies, individuals, firms or 
corporations doing a telephone business in this state shall be 
compelled to make physical connections between their toll line 
at common points, for the transmission of messages or conver¬ 
sations from one line to another: such connection to be made 
through the switchboard of such individuals, companies, firms 
or corporations, if any is maintained at such points, so that 
persons so desiring may converse from points on one of such 
lines to points on another. 

Article 1239.—Telegraph companies, etc., shall transmit trans¬ 
ferred messages, etc., when. —All telegraph companies or per¬ 
sons, firms, corporations or associations of persons, which are 
now, or shall hereafter be, engaged in the business of accept¬ 
ing and transmitting messages to and from different points in 
this state, where the use of a telegraph instrument or instru¬ 
ments is necessary in the conduct of such business, shall, if 
there be any other person, firm, corporation or association 
engaged in such business at the same point or in the same 
town, city or village, provide means whereby all messages 
conveyed to such points over the lines of any such companies 
shall be transferred to the lines of either or all other such 
companies engaged in such business at such common points, and 
transmitted to their final destination; and such facilities shall 


Texas Telephone Laws. 


33 


be provided as will guarantee the transfer of such messages in 
compliance with the provisions of this chapter; provided, that 
in no case shall any message be transferred from one line to 
another against the will of the company first handling same 
when it is possible for such company to deliver said message 
direct to the party for whom it is intended by way of the line 
or lines operated and owned by said company; and provided, 
further, that no telegraph or telephone company shall, under 
the provisions of this chapter, be compelled to receive from the 
wires or lines of any other telegraph or telephone company 
and convey to its final destination any message originating at 
any point on its own lines. 

Article 1240. City council, etc., to hear and determine 
whether transfers be necessary and just, etc. —The city council 
in incorporated cities, and the commissioners court at points 
where there is no city council, shall on the application of one 
hundred resident citizens, or upon its own motion hear such 
evidence as they think necessary, and, upon a final hearing 
they shall determine whether or not it would be necessary for 
public convenience, and just to the telephone or telegraph com¬ 
panies, to make such connection or arrange for transfer of 
messages; whereupon they shall enter of record their find¬ 
ings, and shall also set out in their order the conditions upon 
which such arrangements for conversation or transfer of mes¬ 
sages shall be made, and shall decide what proportion of ex¬ 
pense shall be paid by each of said connecting lines. 

Article 1241. Companies to comply with order of council, 
etc., or forfeit what; provided, etc., appeals, etc. —Whenever 
the city council or commissioners court shall enter an order 
in compliance with Article 1239, requiring telephone or tele¬ 
graph companies to arrange for conversation or transfer or 
(of) messages, it shall be compulsory on said company to ar¬ 
range for such conversation or transfer of messages, and, fail¬ 
ing to do so, shall forfeit to the State of Texas, on suit by the 
county or district attorney, the sum of ten dollars for each and 
every day they so neglect; provided, that the penalty herein 
assessed shall not be operative against a company which is 
prevented from making connections as herein required, through 
the fault or omission of another company, so long as such fault 


34 


Texas Telephone Laws. 


or omission shall cause such failure on its part to so connect; 
provided, further, that any company ordered to arrange for 
conversations or to transfer messages between its line and an¬ 
other line as herein provided shall have the right to appeal from 
such order to the court having jurisdiction over said matter, 
and the court shall, if it shall find that appellant had reason¬ 
able grounds for prosecuting such appeal, suspend the penalty 
herein provided for until such appeal is finally determined. 


CHAPTER IX. 


DISCONTINUANCE OF SERVICE. 

Damages recoverable. —For discontinuance of telephone ser¬ 
vice without consent of subscriber, he may recover damages 
for losses or injuries sustained. Such recovery, however, is 
confined solely to special damages sustained by reason of such 
discontinuance. Moreover, no damages can be awarded except 
such as might have been reasonably expected to follow as the 
natural and probable result of the special conditions, of which 
the company had notice (1). 

A subscriber who had notified the company’s manager of the 
delicate condition of his wife’s health was entitled to dam¬ 
ages, and a judgment for $1,000.00 in his favor allowed to 
stand, where it was shown that the company disconnected his 
line from the exchange, rental charges being paid by him in 
advance, so that he was unable to get telephone communica¬ 
tion with a physician (1). The fact that the plug was with¬ 
drawn by a temporary employe was immaterial. 

The measure of damages in such case was the increased phy¬ 
sical pain suffered by plaintiff’s wife because of the failure to 
secure the doctor ’s services and the increased mental anguish 
endured incident thereto (1), by plaintiff or his wife. 

Contributory negligence. —“If the physician wanted upon 
this occasion had been a hundred or more miles distant, it might 
safely be assumed that a failure to furnish the facilities for 
giving such notice to the physician over the wire would result 
in depriving the patient of his services entirely. On the other 
hand, let us suppose that the physician resided within the dis¬ 
tance covered by an ordinary city block and could have been 
reached in a few moments by a messenger. It might with 
equal satisfaction be assumed that no such consequences would 
have resulted. It follows, then, that there is somewhere be¬ 
tween these two extremes a situation in which the probable 
consquences likely to result from the loss of the telephone 
cease to be a question of law and become one of fact which 
should be submitted to the judgment of the jury. (1).” 


(1) S. Tel. & Tel. Co. v. Allen, 146 S. W. Rep., 1066. 



36 


Texas Telephone Laws. 


Punitive damages. —To entitle plaintiff to recover punitive 
or exemplary damages wilful intent and malice, it seems, must 
be alleged and proved, and the particular facts upon which 
malice is predicated must be set forth (2). 

Company’s right to refuse service. —If patron offers to pay 
for the service in advance, the company has no right to refuse 
such service, merely because patron happens to be indebted 
for past service (2). 

Company bound by employe’s statement. —“We think the 
testimony of appellee and the witness Phipps that they called 
over the telephone from Phipp’s stable for the appellant’s 
office and appellant’s operator gave them connection with some 
telephone from which an answer was received purporting to 
come from said office shows prima facie, at least as against ap¬ 
pellant, that said witnesses were placed in communication with 
said office. This fact being shown the answer received from 
said office over the telephone in reply to said witnesses’ state¬ 
ments and requested in regard to a matter within the authority 
of the manager or other person in charge of said office should, 
in the absence of evidence to the contrary, be presumed to have 
been made by some one authorized by the appellant to reply to 
the request or message as communicated to its office. The tes¬ 
timony of appellant’s manager that he had no knowledge of 
such communication was not as a matter of law sufficient to 
overcome this presumption and the question of whether some 
one in said office authorized to make said answer did in fact 
make same was one for the jury” (2). 


(2) S. Tel. & Tel. Co. v. Luckett, 127 S. W. Rep., 856. 



CHAPTER X. 


CRIMINAL OFFENSES AND DISCRIMINATION. 

Using vulgar or profane language over telephone. —Article 
471, Revised Penal Code, 1911. If any person shall use any 
vulgar, profane, obscene or indecent language over or through 
any telephone in this state, he shall be guilty of a misdemeanor, 
and, on conviction, shall be fined in any sum not less than five 
dollars nor more than one hundred dollars. 

Note.—See Taylor v. State, 177 S. W. Rep., 82. 

Injuring, cutting or destroying telephone wires. —Article 
1228, Revised Penal Code, 1911. If any person shall intention¬ 
ally break, cut, pull or tear down, misplace, or in any other 
manner injure any telegraph or telephone wire, post, machin¬ 
ery or other necessary appurtenance to any telegraph or tele¬ 
phone line, or in any way wilfully obstruct or interfere with 
the transmission of messages along such telegraph or telephone 
line, he shall be punished by confinement in the penitentiary not 
less than two nor more than five years, or by fine not less than 
one hundred nor more than two thousand dollars. 

Note.—See Craighead v. State, 55 T. C. R., 386; 117 S. W. Rep., 
128. 

Obstructing transmission of message by telephone. —See pre¬ 
ceding paragraph ‘‘Injuring, cutting, etc.” 

Knowingly permitting wire to connect with bucket shop, etc. 

—Article 544, Revised Penal Code, 1911. If any telegraph or 
telephone company, or any agent thereof, shall knowingly per¬ 
mit any telegraph or telephone wire or instrument to remain 
in any bucket shop, or shall knowingly permit any of the wires, 
instruments or equipments of such telegraph or telephone com¬ 
pany, to be used by any person engaged in any business ren¬ 
dered unlawful by this law, whether or not the same be leased 
by the person or persons so illegally using the same, such com¬ 
pany or agent shall be fined not less than one hundred nor more 
than one thousand dollars, and each day that this article is 
violated shall constitute a separate offense. 

Note.—The law referred to in the foregoing paragraph is the Anti- 
Bucket Shop Act, passed by the 30th Legislature in 1907, being 
Chapter 3, Title 2, Revised Penal Code, 1911. 


38 


Texas Telephone Laws. 


Railroad operator working more than eight hours. —Article 
1555, Revised Penal Code, 1911. It shall be unlawful for any 
railroad telegraph or telephone operator to work more than 
eight hours in twenty-four consecutive hours at such occupa¬ 
tion; and any such operator, violating this article, shall pay a 
fine in any sum not less than twenty-five dollars nor more than 
one hundred dollars; provided, that, in case of an emergency, 
any operator may remain on duty for an additional two hours. 

Limiting employe to fifty-four hours per week. —Section 1. 
No female shall be employed in any manufacturing or mercan¬ 
tile institution engaged in the manufacture of clothing, shirts, 
overalls, jumpers or ladies’ garments or any mercantile estab¬ 
lishment or work shop or printing office, dressmaking or millin¬ 
ery establishment, hotel, restaurant or theater or telegraph or 
telephone office or establishment for more than fifty-four (54) 
hours during any one week, the hours of such employment to 
be so arranged as to permit the employment of such females at 
any times so that she shall not work more than a maximum of 
ten (10) hours, during the twenty-four (24) hour period for 
one day. Provided, however, that at the time of great disaster, 
calamity or epidemic, telephone establishments may work their 
operators with their consent a greater number of hours in any 
one day, thah above stated, said operators to be paid not less 
than double their regular compensation for such extra time; 
provided this act shall not apply to females who are registered 
pharmacists; provided, this act does not apply to cities con¬ 
taining a population of 5,000 or less as shown by the last Fed¬ 
eral census. (Chapter 175, page 421, Acts Regular Session, 
33rd Legislature.) 

Employers must provide suitable seats. —Section 2. Every 
employer in any manufacturing, mechanical or mercantile estab¬ 
lishment, or workshop, laundry, printing office, dressmaking or 
millinery, establishment, hotel, restaurant, or theater, or tele¬ 
graph or telephone establishment and office or any other estab¬ 
lishment employing any female shall provide suitable seats 
for all female employes and permit them to use such seats 
when not engaged in the active performance of the duties of 
their employment. 

Penalty for disregarding provisions of Sections 1 and 2.— 

Section 3. Any employer, overseer, superintendent, foreman 


Texas Telephone Laws. 


39 


or other agent of any such employer who shall require any fe¬ 
male to work in any of the places mentioned in Section 1 more 
than the number of hours provided for in this act, during any 
day of twenty-four hours, or who shall fail, neglect or refuse 
to so arrange the work of females employed in said places men¬ 
tioned in Section 1 so that they shall work more than the num¬ 
ber of hours provided for in this act, during any day of twenty- 
four (24) hours or the number of hours prescribed by this act 
in any one week, or who shall fail, neglect or refuse to pro¬ 
vide suitable seats as provided in Section 2 of this act, shall be 
deemed guilty of a misdemeanor and upon conviction thereof, 
shall be fined not less than fifty ($50.00) dollars nor more than 
two hundred ($200.00) dollars or imprisonment in the county 
jail not less than five (5) nor more than thirty (30) days, or 
by both such fine and imprisonment. 

Note.—The attorney-general’s department has handed down two 
opinions construing the above law. 

The first, by Mr. Smedley, was in answer to the following 
proposition: 

Operator can not contract in violation of fifty-hour hour law. 

—“The Independent Telephone Company places an operator on 
duty at 9 o’clock at night, and she and another girl have a bed 
there, but the operator remains up until midnight answering 
calls. At midnight she retires with a night bell and answers 
such calls as come in until 8 o’clock in the morning. This op¬ 
erator is practically on duty all during this period of time. 

“Under the law * * * ca n this operator contract with the 
management so as to eliminate the fifty-four hour proposition?” 

The ruling was that the operator can not make a contract 
eliminating the fifty-four hour law. In other words, she can 
not contract with the management to be on duty more than 
fifty-four hours per week as laid down in the statute. 

The second ruling, by Mr. Looney, was in answer to the fol¬ 
lowing proposition: 

Law applies to private exchange operators. —“This depart¬ 
ment is in receipt of inquiry from industrial and other concerns 
asking if the fifty-four hour law enacted by the Regular Ses¬ 
sion of the Thirty-third Legislature applies to telephone ope¬ 
rators in private exchanges. In many instances such operators 


40 


Texas Telephone Laws. 


are employed during the day while not busy at the private ex¬ 
change as stenographers or at other duties. * * 

The answer was in part as follows: 

“It is therefore, the opinion of this department, and you are 
so advised, that the fifty-four hour law applies to telephone 
operators who are employed in private exchanges.” 

Discriminations—Giving frank, etc.—Article 1532, Revised 
Penal Code, 1911. If any * * * telegraph or telephone com¬ 
pany, or person or association of persons operating the same, 
or the receivers or lessees thereof, or any officer, agent or em¬ 
ploye of any such company in this state, shall knowingly # * * 
give * * * a * * * frank, a privilege or a substitute for 
pay, or a subterfuge which is used, or which is given to be used 
instead of the regular fare or rate # # # or shall knowingly 
permit any person to transmit any message free in this state, 
or shall give any frank or right or privilege to transmit mes¬ 
sages free in this state * # * except such persons as are 

hereinafter exempted under the provisions of this chapter, 
shall be guilty of a misdemeanor, and, upon conviction in any 
action brought on this account, and for that purpose, shall pay 
to the State of Texas the sum of five thousand dollars for each 
and every act which violates the provisions of this article; and 
any person, president, director, officer, employe or agent of any 
such corporation or association of persons, who shall * * * 

knowingly give, grant, issue, or cause to be issued, a * * * 

frank, a privilege or any substitute for, or in lieu thereof, for 
the * * * sending or transmitting any messages over wire 
or other means of transmitting messages in this state, except to 
such persons as are hereinafter exempted from the provisions 
of this chapter, shall be deemed guilty of a felony under the 
laws of this state, and, upon conviction for such act, shall be 
punished by a fine of not less than five hundred dollars nor 
more than two thousand dollars, and, may, in addition thereto, 
in the discretion of the jury, be imprisoned in the penitentiary 
for a term of not less than six months nor more than two years. 

Bona fide employes exempted—Article 1533, Revised Penal 
Code, 1911. * * * And provided, further, that nothing in 
this chapter shall be construed to prohibit any telegraph or 
telephone company from carrying and transmitting, free of 


Texas Telephone Laws. 


41 

charge, the messages of its bona fide officers, attorneys, agents 
and employes who are actually in the employment of such com¬ 
pany, its receivers or lessees, at the time when such free trans¬ 
mission, of the right thereto, was given. 

Person forbidden to use other’s frank, etc. —Article 1534, 
Revised Penal Code, 1911. If any person shall present, or offer 
to use, in his own behalf, any permit or frank whatsoever, to 
travel, pass or to convey any person or property or message 
which has been issued to any other person, or shall, knowing 
that he is not entitled under the provisions of this chapter, ap¬ 
ply to any railway, express, telegraph or telephone company, 
officer, agent, lessee or receiver, thereof, for any free pass, frank, 
privilege or a substitute for pay given or to be used instead of 
the regular rate for transportation, or for any other considera¬ 
tion, except money, he shall be deemed guilty of a misdemeanor, 
and, upon conviction, shall be punished by confinement in the 
county jail for not less than thirty days and not more than 
twelve months, and by a fine of not less than one hundred dol¬ 
lars and not more than one thousand dollars. 

Every kind of discrimination forbidden. —Article 1535, Re¬ 
vised Penal Code, 1911. No company, subject to the provisions 
of this chapter, shall, directly or indirectly, by any special rate, 
rebate, drawback, or other device or exchange, demand, charge 
or collect or receive from any person, firm, association of per¬ 
sons or corporation a greater or less or different compensation 
for any service rendered or to be rendered, in the transportation 
of passengers, property or messages, than it charges, demands, 
collects or receives from any other person, firm, association of 
persons or corporation for doing for him, them or it, a like ser¬ 
vice, if the transportation or transmission is a like kind of 
traffic or service under substantially similar circumstances and 
conditions; and any such company violating these provisions 
shall be deemed guilty of a misdemeanor, and for each offense, 
on conviction, shall pay to the State of Texas a penalty of five 
thousand dollars. 

Company must report all free service rendered.— Article 1536, 
Revised Penal Code, 1911. Each and all companies subject to 
the provisions of this chapter, their receivers and lessees, shall 
report annually on such dates as may be fixed by the railroad 
commission of this state, the name and residence of each and 


42 


Texas Telephone Laws. 


every person to whom free transportation, or right thereto, was 
given to travel, or to have his property or messages transported 
or transmitted over its transportation, express, sleeping car or 
railway or telegraph or telephone line; and any company vio¬ 
lating this provision shall be deemed guilty of a misdemeanor, 
and for each offense, on conviction, shall pay to the State of 
Texas a penalty of one thousand dollars. 

Person receiving free service, guilty of misdemeanor. —Ar¬ 
ticle 1537, Revised Penal Code, 1911. Any person, other than 
the persons excepted in this chapter, who uses any such free 
ticket, free pass or free transportation, frank or privilege over 
any railway or other transportation line or sleeping or express 
car, telegraph or telephone line, mentioned in this chapter, for 
any distance under the control and operation of either of said 
companies, subject to the provisions of this chapter, or under 
their authority, or shall knowingly and wilfully, by any means 
or device whatsoever, obtain, use or enjoy from any such com¬ 
pany, a less fare or rate than is charged, demanded, collected 
or received by any such company from any other person, firm, 
association of persons or corporations for doing for him, them 
or it, a like service, if the transportation or service is of a like 
kind of traffic or service under substantially similar circum¬ 
stances and conditions, such person or such officer or agent who 
acts for such corporation, or company thus favored, shall be 
guilty of a misdemeanor, and, on conviction, for each offense, 
shall be fined not less than one hundred dollars and not more 
than one thousand dollars. 

Penalty for discrimination by officer or others. —Article 1538, 
Revised Penal Code, 1911. Any director, officer, agent or any 
receiver, trustee, lessee or person acting for, or employed by, 
any company subject to the provisions of this chapter, who 
alone, or with any other corporation, company, persons or 
party, shall wilfully do, or cause to be done, or shall wilfully 
suffer, or permit to be done, any act, matter or thing in this 
chapter prohibited or declared to be unlawful, or who shall aid 
or abet therein, or shall wilfully omit or fail to do any act, 
matter or thing in this act required to be done, or shall cause 
or wilfully suffer or permit any act, matter of thing so directed, 
required by this chapter to be done, not to be done, or shall aid 


Texas Telephone Laws. 


43 


or abet any such omission or failure, or shall be guilty of any 
infraction of this chapter, or shall aid or abet therein, shall 
be deemed guilty of a misdemeanor, and shall, upon conviction, 
be subject to a fine of not less than one hundred dollars nor 
more than one thousand dollars; and, if the offense for which 
any person shall be convicted under this section shall be un¬ 
lawful discrimination in rates, fares or charges for the trans¬ 
portation of passengers or property or the transmission of mes¬ 
sages, such person may, in addition to the fines hereinbefore 
provided for, at the discretion of the jury, be imprisoned in 
the penitentiary for a term not less than six months nor more 
than two years. 

Person may be compelled to testify, exempt from prosecution. 

—Article 1539, Revised Penal Code, 1911. In any investigation, 
suit or prosecution which may be had, or instituted, under the 
provisions of this chapter, the court or tribunal in which the 
investigation, suit or prosecution is pending may compel all per¬ 
sons to attend and give testimony, and to produce such papers, 
books and documents as may be desired by the state; and no 
person shall be exempt from giving testimony therein; provided, 
however, that no criminal action or proceeding shall be brought 
or prosecuted against such witness on account of any testimony 
so given or furnished by him. 

Discrimination not unlawful, when. —According to an opin¬ 
ion rendered by the attorney general’s department in 1914, a 
mere discrimination in favor of one customer is not unlawful 
unless it amounts to an unjust discrimination. 

Special rate may be given newspapers. —In the same opinion 
is the following declaration: 

“Telephone companies can give a special rate to publishers 
of newspapers based upon the peculiar nature of the service 
as well as upon the semi-public use to be made of the service.” 

Special rate may be given person having more than one tele¬ 
phone. —In 1913, the attorney general’s department rendered 
an opinion in answer to the following question: 

“Under the anti-pass law, is it possible for us to make re¬ 
duction in telephone rates to parties who have two or more 
telephones in same house but different numbers on our switch¬ 
board ? ’’ 

The ruling is an affirmative answer to the question, condi- 


44 


Texas Telephone Laws. 


tioned that a similar reduction in rates is allowed to all ap¬ 
plicants. “A telephone company may make special rates to 
persons having more than one telephone in their houses, pro¬ 
vided they make such rates to the general public.” 


CHAPTER XI. 


TELEPHONE LINE AS NUISANCE. 

Telephone poles erected in a highway without authority of 
law are nuisances, and one sustaining damages special and apart 
from what the public in general sustain by reason thereof, may 
maintain an action against him who maintains such a nuis¬ 
ance (1). 

If, however, the line has been constructed in accordance with 
law, it is not abatable as a nuisance. The remedy of one in¬ 
jured is action for damages sustained (2). But damages hav¬ 
ing been once recovered, no further recovery may be had. 

(1) A. W. C. & C. C. Tel. Co. v. Billingsley, 77 S. W. Rep., 255; 
33 T. C. A., 452. 

(2) Brown v. S. Tel. & Tel. Co., 44 S. W. Rep., 59; 17 T. C. 
A., 433. 




CHAPTER XII. 


PERSONAL INJURIES. 

Injuries resulting in death. —A telephone company is liable 
for personal injuries resulting in death, when brought about 
by its negligence (1). 

Thus where a wire broke, or parted, and one piece fell across 
heavily charged light wires and one who came in contact with 
the loose end lying on the ground was shocked to death, a jury 
trial resulted in a verdict for damages in the sum of $2,000.00 
and was sustained on appeal (1). 

Duty to keep wires off street. —It is the duty of the company 
to so maintain its system of wires that they will not endanger 
the lives of others, nor interfere with the public’s lawful use 
of the street; and if by any chance any of its wires gets broken 
and in such condition as that it may cause injury to others, 
the duty is to exercise ordinary care and diligence to ascertain 
such fact and remedy the defect (1). 

Duty non-assignable. —This duty is known in law as a non- 
assignable duty, for which the company is liable even though 
a servant or employe only may be at fault, and not the manage¬ 
ment of the company (1). 

Proximate cause. —In this case, after the wire was broken and 
lay in the street a person in no way connected with the company 
moved it to the place where the accident resulting in death oc¬ 
curred. But such removal did not exempt the company from 
liability, because the wire was an obstruction of the street 
which, it seems, any one would have a right to remove, and the 
company might expect that it would be removed (1). 

Company charged with notice of condition of wires. —The 
company is presumed in law to have that knowledge of the 
condition of its wires which it can have by the exercise of that 
degree of care, prudence, and diligence that an ordinarily pru- 

(1) Citizens Telephone Co. v. Thomas, 99 S. W. Rep., 879; 45 
T. C. A., 20. 

See, also, the case of Telephone Co. et al. v. Wilson, affirmed by 
Austin Court of Civil Appeals February 9, 1916, and not at this 
date published. 



Texas Telephone Laws. 


47 


dent person would use under the same or similar circum¬ 
stances (1). 

Injuries caused by guy wires.— A telephone company has the 
right to construct and maintain such guy wires as are reason¬ 
ably necessary to support its telephone poles, provided that in 
so doing it exercises ordinary care for the safety of the travel¬ 
ling public (2). 

Liable for negligent construction. —The company is univers¬ 
ally held liable for damages resulting from negligent construc¬ 
tion of such wires. 

What is negligent construction of guy wires. —Leaving con¬ 
struction work not complete, or short of that which an existing 
duty requires should be done, may be regarded as a fault in 
construction, hence actionable negligence, as that the wire was 
“so obscured from vision,” etc. (2). 

A jury may be justified in finding that failure to box or in¬ 
close guy wire is negligence (2). 

Or, that it is negligence to stretch a guy wire across a wagon 
road on open, vacant ground, when no light, guard or other 
protection was placed thereon (3). 

. Thus, the company w r as held guilty of negligent construction, 
hence liable in damages, when the wire extended on and onto 
a public road, though it did not reach the graded or traveled 
part thereof, it being held that the travelling public has a right 
to use the entire roadway and the use of same must not be in 
any way hindered (4). 

Amount of damages recoverable. —Judgment for $7,500.00 
—after remit,titur of $1,500.00—was held not excessive 
for fractured ankle (2). Two thousand dollars was al¬ 
lowed to stand as a judgment when awarded for injuries sus¬ 
tained by being thrown from a buggy (4), and $1,500.00 was 
sustained where the accident was caused by a horse running 
against a guy wire after nightfall (3). 

Character of damages. —For injuries sustained by contact 
with guy wires it seems damages may be recovered for mental 

(2) City of Port Worth v. Williams, 119 S. W. Rep., 137. 

(3) Texas Telegraph & Telephone Co. v. Thompson, 130 S. W. 
Rep., 705. 

(4) Southwestern Tel. & Tel. Co. v. Tabb, 114 S. W. Rep., 448. 



48 


Texas Telephone Laws. 


anguish (3), for diminished earning capacity (3) or for physical 
pain and suffering (2). 

Contributory negligence. —A definition of what might con¬ 
stitute contributory negligence in this connection is difficult 
to frame—the general rule that one owes the duty of 
averting disaster being always applicable—but it was held 
that though other people knew of the existence and posi¬ 
tion of the guy wire, and plaintiff might have known as he lived 
in the immediate neighborhood, yet it did not constitute con¬ 
tributory negligence that he rode against the wire when riding 
faster than a gallop at night, there being no lights to guide 
him (3). And where, in another case, the plaintiff was driving 
in a buggy after nightfall and in attempting to pass another 
buggy was thrown out and injured by contact with a guy wire 
negligently placed on and across part of the public road, the 
court on appeal sustained a jury finding that necessarily im¬ 
plied there was no contributory negligence (4). 

Low-hanging wires. —Many cases involving damages for per¬ 
sonal injuries have arisen out of negligence in permitting wires 
to hang too low across railroad tracks, public roads and other 
places. In this connection it has been the unvaried holding 
of our courts that the wires must be above any travel and 
must be securely fastened. 

In one case, a farmer was driving a team of mules when a 
wire hanging too low struck the top of the wagon. The mules 
took fright, ran away and the farmer was thrown and badly 
hurt. At the point where the accident occurred the road was 
not a public one within the meaning of the law. The trial 
court charged the jury in substance that no recovery could be 
had unless the wire was hanging too low across a public road, 
and under this charge a verdict was returned in favor of the 
owner of the wire, who happened to be an individual, not a 
company. Upon appeal the case was reversed and remanded 
for another trial because of the error in the trial court’s charge 
respecting the road, the higher court intimating that it makes 
no difference under such circumstances whether the wire hangs 
over a public road, or vacant ground, an injury sustained there¬ 
from being actionable (5). 


(5) Adams v. Weakley, 80 S. W. Rep., 411; 36 T. C. A., 371. 



Texas Telephone Laws. 


49 


And where it was shown that plaintiff, who was a lawyer, 
was riding along a road when his horse became entangled in 
a wire, negligently hung, as a result of which he was thrown 
and sustained serious injuries in the form of a torn lip and 
green stick fracture of the jaw bone, the court allowed a ver¬ 
dict in his favor to stand (6). 

Not infrequently it has occurred that a wire hanging too low 
over a railroad track has dragged an unfortunate employe from 
a box car, resulting in serious injuries. Several such cases have 
found their way to the appellate courts and where it has been 
shown that the telephone company was guilty of negligence in 
the hanging or maintenance of its wire, liberal judgments have 
been sustained (7). 

In one such case the jury’s finding was to the effect that 
both the railroad company and the telephone company were at 
fault and a judgment against them jointly was affirmed (8). 
In this opinion the court declared that it was the duty of the 
railroad company to keep its track in a reasonably safe con¬ 
dition. Further, that the plaintiff having been injured, with¬ 
out contributory negligence on his part, by a telephone wire 
which the telephone company allowed to hang too low over 
the track of the railway, and which the telephone company 
and the railway company knew, or might have known by or¬ 
dinary care and diligence, they are both responsible to him in 
damages (8). 

In another case, however, the court reversed and remanded 
for new trial a judgment awarding damages in the sum of 
$200.00 for injuries sustained in a similar manner, because the 
evidence did not sufficiently establish the company’s ownership 
of the line in question, the evidence showing that although the 
company sent and received messages over the line, it was by 
reason of a traffic arrangement of the line’s owner (9). 

(6) Commercial Telephone Co. v. Davis, 96 S. W. Rep., 939; 43 
T. C. A., 547. 

(7) American Telegraph & Telephone Co. v. Kersh, 66 S. W. 
Rep., 74; 27 T. C. A., 127. 

(8) Dillingham, Receiver, et al. v. Crank, 27 S. W. Rep., 38; 
same case, Supreme Court, 27 S. W. Rep., 93. 

See, also, the case of Telephone Co. et al. v. Wilson, affirmed by- 
Austin Court of Civil Appeals February 9, 1916, and not at this 
date published. 

(9) Southwestern Tel. & Tel. Co. v. Corbett, 148 S. W. Rep., 826. 



50 


Texas Telephone Laws. 


Contributory negligence. —It was held that a brakeman stand¬ 
ing on a box car, in the lawful discharge of his lawful duty, 
was guilty of no contributory negligence in being dragged 
down by a telephone wire (8). 

Elsewhere, it is declared that the issue of contributory neg¬ 
ligence should be submitted but once in the trial court’s charge, 
and that more than one reference thereto is liable to have the 
effect of giving it undue prominence (5). 

Amount of damages. —For injuries sustained from contact 
with negligently hung wires, judgments in the respective sums 
of $5,000.00 (6-7) and $2,000.00 (7) have been sustained, as not 
excessive. 

Injuries from loose wire left in street. —The specific ground 
of negligence charged in one case, and alleged as the basis of 
the plaintiff’s right to recover damages, was that the company 
“ while engaged in repairing and enlarging its telephone sys¬ 
tem in the town of Sweetwater, carelessly, negligently, and 
contrary to its duty to the public, left a wire in the public 
and traveled street of said town.” 

Plaintiff’s evidence showed that the company’s local man¬ 
ager at Sweetwater had been engaged in repairing or remov¬ 
ing some of its wires from a guy pole at the point where plain¬ 
tiff was injured, about the time the injury occurred, and that 
the wire over which plaintiff fell had one end thereof attached 
to the said guy pole, the other end being left lying across the 
sidewalk. When shown the wire, the local manager said, 
“That’s our wire.” By other testimony it was shown that a 
good many loose pieces of wire had been gathered up by an 
employe of the company. 

On trial judgment resulted for the plaintiff and the higher 
court affirmed the judgment as based on actionable negli¬ 
gence (10). 

Contributory negligence. —The testimony showed that the 
plaintiff was walking along the sidewalk on one of the prin¬ 
cipal streets about six o’clock in the morning when he fell over 

(10) Texas & Pacific Tel. Co. v. Prince, 82 S. W. Rep., 327; 36 
T. C. A., 462. 

See, also, the case of Telephone Co. et al. v. Wilson, affirmed by 
Austin Court of Civil Appeals February 9, 1916, and not at this 
date published. 



Texas Telephone Laws. 


51 


the wire in question. There is nothing in the evidence to indi¬ 
cate negligence on plaintiff’s part, say the court, although he 
testified that he might have seen the wire had he been looking. 
The case is not one of contributory negligence, as there is noth¬ 
ing indicating that plaintiff should rasonably have contem¬ 
plated an obstruction of the character met with. “It certainly 
can not he affirmed that a party is guilty of negligence because 
of a mere failure to closely scrutinize the sidewalks of a 
city” (10). 

Amount of damages. —Plaintiff was a saddle and harness 
maker by trade. He alleged that in endeavoring to break the 
force of his fall he cut his thumb causing the joint to become 
stiff, which thereby permanently incapacitated him from pur¬ 
suing his occupation. A judgment for damages in the sum of 
$450.00 was allowed to stand (10). 

Duty of company as to heavily charged wires. —As previously 
stated, it is the duty of a telephone company to so maintain its 
system of wires that the lives of others will not be endangered 
thereby. If the telephone wire is so constructed as to render 
it probable, if not inevitable, that in falling it will fall upon 
or across the wire of a lighting and power company and become 
charged with a sufficient current of electricity to make it dan¬ 
gerous, then the telephone company will be held to the same 
degree of care in reference thereto as though its own wire were 
originally so charged (1). 

Injuries caused by heavily charged wires. —In one case a man 
was employed by the owner to repair the roof of a building 
over and upon which the company maintained two wires. In 
making the repairs it became necessary to loosen these wires 
from the comb of the roof to which they were attached with 
nails driven through insulating knobs. One of the wires broke 
from its fastenings on another building some distance east 
from the one where the repair work was in progress, thus 
slackening the wire and causing it to come in contact with the 
trolley wire of an electric railway company in the street. Har¬ 
ris, the workman, sustained a severe shock. The testimony 
showed that before attempting to remove the wires he observed 
that they were apparently well secured at the point where the 


52 


Texas Telephone Laws. 


break occurred, and it was this break which caused the acci¬ 
dent (11). 

Duty of company as to maintenance of wires. —On 

trial he was awarded' damages, and the judgment was sus¬ 
tained on appeal, the higher court declaring that he was right¬ 
fully on the building and the telephone company owed him the 
duty of maintaining its wires at such place in such way as not 
to injure him (11). 

Contributory negligence. —The court further held there was 
no contributory negligence, saying: “It can not be held as 
matter of law that one is guilty of contributory negligence, 
merely because he is engaged in a business known by him to 
be dangerous. Prudent men often engage in such undertak¬ 
ings. The test of their right to recover when injured is whether 
or not, under all the circumstances, they were guilty of negli¬ 
gence at the time of the injury” (11). 

In another case, however, where it was shown that the per¬ 
son injured was a lineman in the employ of the company, that 
he understood the probable danger of coming in contact with 
the heavily charged wires, and himself assumed the risk, the 
court declared the company was not to blame, and that he had 
no right of recovery (12). 

Injuries caused by lightning. —“Appellant (the telephone 
company) owned and operated a system of telephone lines in 
the town of Troupe, and one of its telephones had been by it 
installed in the residence of appellee Evans (plaintiff in the 
court below). On the 27th of February, 1907, during a rain 
and thunder storm, Mrs. Evans, the wife of the appellee, re¬ 
ceived a severe shock from a flash of lightning, causing the 
personal injuries for the recovery of which this suit was brought 
against the appellant company. She was at the time standing 
in the room which contained the telephone, and within four or 
five feet of where the instrument was attached to the wall. 
The room was provided with doors and windows and a brick 
chimney with an open fire-place. At the time of the accident, 
the other members of the family were in another room. The 
testimony on the part of the appellee shows: That Mrs. Evans 

(11) Panhandle Tel. & Tel. Co. v. Harris, 136 S. W. Rep., 1129. 

(12) Newnom v. Southwestern Tel. & Tel. Co., 47 S. W. Rep., 6'69. 



Texas Telephone Laws. 


53 


had gone into this room where the telephone was, alone. That 
a rain was falling, accompanied by thunder and lightning. 
There appeared a bright flash of lightning that illuminated 
the room like a ball of fire, which was immediately followed 
by a loud report like the discharge of a gun. Appellee and 
other members of the family immediately rushed into the room, 
and found Mrs. Evans lying unconscious upon the floor within 
about four feet of the telephone. She was burned on the left 
side of her neck and face and her left arm. She remained un¬ 
conscious for several hours thereafter. An effort was imme¬ 
diately made over the telephone in the Evans residence to sum¬ 
mon a physician, but the telephone failed to work, the bell 
would not ring, and no connection could be obtained with the 
central office. Subsequently a physician was summoned over 
another telephone. From a verdict and judgment in favor of 
the appellee for $1,000.00 this appeal is prosecuted.’’ (Judg¬ 
ment affirmed.) 

Specific charge of negligence. —“The suit is based upon a 
charge of negligence on the part of the telephone company in 
failing to provide and install in connection with its telephone 
at the residence of appellee a proper device for arresting light¬ 
ning, an instrument commonly known as a ‘lightning arrester,’ 
together with a ground connection. It is shown that the proper 
office of this instrument is to prevent a heavy charge of elec¬ 
tricity from going into a residence over the telephone wire, and 
it is constructed with the design to automatically cut off at 
the ‘arrester’ any connection with the wires inside of the resi¬ 
dence, and to transmit the excessive current over another wire 
to the ground. The specific negligence charged is that the ap¬ 
pellant company failed to install in connection with its arrester 
device what is called a ‘ground connection’; that is, a wire 
running from the ‘arrester’ to the ground. Upon this issue as 
to whether this had been done there was some conflict in the 
evidence, but we think the jury was justified in finding that 
there was none at this telephone.” 

Duty of company to provide against lightning. —“Having un¬ 
dertaken to place and maintain the instrument in the house and 
connect it with its telephone line for the use of the deceased, 
in so doing it was under the duty to exercise the care of a pru¬ 
dent man under like circumstances. If, while in the exercise 


54 


Texas Telephone Laws. 


of such care, it had reasonable grounds to apprehend that 
lightning would be conducted over its wires to and into the 
house, and there do injury to persons or property, and there 
were known devices for arresting or diverting such lightning so 
as to prevent injury therefrom to the house or persons therein, 
then it was the defendant’s duty to exercise due care in select¬ 
ing, placing and maintaining, in connection with its wires and 
instruments, such known and approved appliances as were rea¬ 
sonably necessary to guard against accidents that might fairly 
be expected to occur from lightning when conducted to and 
into a house over its telephone wires” (13). 

Injuries caused by negligently placed pole. —In the city of 
Beeville where Walton St. crosses Ave. D., both thoroughfares 
were fenced. The company planted one of its posts 9% feet 
from the intersection, leaving a passageway that distance in 
width between the pole and the two posts on the corner of 
the streets. Appellee’s wife, driving a safe and gentle horse, 
in the exercise of ordinary care, following that part of the 
street mostly traveled undertook to pass between the pole and 
the corner posts. The horse, to nip a fly which was pestering 
him, suddenly threw his head to one side and caused the right 
fore wheel of the buggy to collide with the said telephone 
pole with such force and violence as to throw the lady over 
the dashboard of the buggy onto the ground with such force 
as to painfully and seriously injure her (14). 

Duty of company as to placing poles. —A telephone company, 
in the exercise of the right conferred upon it by the law of 
this state to set its poles along or across any public street or 
road, is bound to use reasonable care in the construction and 
maintenance thereof, so that travelers along such thorough¬ 
fares, in the eexercise of ordinary care, shall not be discom¬ 
moded or injured by coming in collision with them. The right 
to erect such poles is granted with the implied condition that 
the poles shall not be so located as to be dangerous, and if a 
traveler in a vehicle, while in the exercise of due care and 
vigilance, is injured by contact therewith, the company is 
liable for injuries sustained (14). 

(13) S. Tel. & Tel. Co. v. Evans, 116 S. W. Rep., 418. 

(14) A. W. C. & C. C. Tel. Co. v. Billingsley, 77 S. W. Rep., 255; 
33 T. C. A., 452. 



Texas Telephone Laws. 


55 


Negligence question for jury. —Whether or not the company 
has used such care, or has been negligent, is a question for sub¬ 
mission to the jury (14). 

Poles illegally erected, nuisances. —Poles erected in a high¬ 
way without authority of law are nuisances, and one sustaining 
damages special and apart from what the public in general 
sustain by reason thereof, may maintain an action against him 
who maintains such a nuisance (14). 

Contributory negligence. —The question of contributory neg¬ 
ligence is one for the jury. In the case under examination, 
although the driver was aware of the situation of the pole, such 
knowledge did not constitute her undertaking to drive along 
the road between it and the two fence posts at the corner 
negligence in itself. Nor did the fact that she might have 
driven on the other side of the street charge her with negli¬ 
gence (14). 

Amount of damages. —Upon trial a judgment for damages in 
the sum of $1,000.00 was rendered, same being affirmed on ap¬ 
peal (14). 


CHAPTER XIII. 


STORM DAMAGE. 

Pole broken by storm. —During the storm of September 8, 
1900, the pole broke just where it passed through the awning 
of appellee’s building, and also a short distance above the 
awning. The top portion of the pole, after it broke in two, was 
held suspended by the wires which were fastened to it. The 
awning fell, and the end of appellee’s building was either 
pulled out by the wires which ran over it and were pulled 
down by the weight of the pole suspended to them, or was bat¬ 
tered down by the suspended portion of the pole as it was blown 
to and fro by the wind. The evidence shows that appellee was 
damaged in the amount adjudged him by the court below, $215. 

Erection of pole. —The pole was on the sidewalk,' ran up 
through the awning, was 50 feet long, 20 inches in diameter at 
base and sunk 6% feet in the ground. When put up three 
years prior to time of accident it was inspected and found suit¬ 
able and sound. 

Pole sufficient, if sufficient under ordinary conditions. — “In 

our opinion,” say the higher court,, on appeal, “the evidence 
fails to show that the pole was insufficient under ordinary con¬ 
ditions, and, had the trial court passed upon this issue, he must 
have so found. We think it clear that the court below, in ren¬ 
dering judgment for the plaintiff did so upon the theory that, 
if the pole was defective to such an extent that it was too weak 
to withstand the storm of September 8, 1900, when other poles 
erected by the company did withstand the storm, and that the 
breaking of the pole caused the damage to plaintiff’s property, 
he was entitled to a judgment, regardless of the character of 
the storm, or of whether the pole may not have been strong 
enough to resist the force of any ordinary storm. It is un¬ 
necessary to cite authority upon the proposition that if the 
pole was, under ordinary conditions, suitable and sufficient for 
the purpose for which it was used, the fact that it was not 
strong enough to resist a storm of such unusual and unprece¬ 
dented violence as that in which it was broken, would not show 
negligence on the part of defendant in using said pole, because 


Texas Telephone Laws. 


57 


the defendant was not required to foresee such an occurrence, 
or to construct its lines with reference to same. The mere fact 
that it was possible for the defendant to have procured poles 
of sufficient strength to withstand the storm, as shown by the 
fact that some of the poles erected by it were not broken by the 
storm, did not require it to use only poles of sufficient strength 
to withstand a storm of this character, and its failure to do 
so was not negligence (1). (The case was reversed for another 
trial.) 

(1) S. Tel. & Tel. iCo. v. Ingrando, 65 S. W. Rep., 1085; 27 T. 
C. A., 400. 



CHAPTER XIV. 


DAMAGES FOR CUTTING PASTURE FENCE. 

Statement of case. —This suit was brought by plaintiff against 
the telephone company and a railway company for the loss of 
eight head of cattle and expense of searching for same. It 
was alleged that telephone employes cut the right-of-way fence; 
the cattle escaped from the pasture and, there being no proper 
railway cattle guard, from the railway right-of-way. The ver¬ 
dict was for plaintiff for $272.00, which by remittitur was re¬ 
duced to $256.00. The judgment was against the railway com¬ 
pany, it having judgment against the telephone company. 
Upon appeal the higher court ordered the judgment affirmed 
upon filing of further remittitur of $42.00 (1). 

Damages for expense of searching for lost cattle. —The com¬ 
pany, under such circumstances, would be liable for the ex¬ 
penses of such a search as a prudent person would institute and 
follow up, this to be a question for determination of the jury. 

Proximate cause. —The court declared that both the cutting 
of the fence and the negligence of the railway company in hav¬ 
ing no proper cattle guard were proximate causes of the dam¬ 
ages sustained. 

Measure of damages. —The cattle being finally lost, eight head 
in number, plaintiff was entitled to be reimbursed for the mar¬ 
ket value of same, and for expenses of such a search as a pru¬ 
dent person would institute and follow up. 


(1) S. Tel. & Tel. Co. v. Krause, 92 S. W. Rep., 431. 



CHAP TEH XV. 


DAMAGES FOR TRESPASSING ON PRIVATE PROPERTY. 

Statement of case (1). —J. E. T. Whiteman, appellee, sued the 
company to recover damages for trespassing upon his premises. 
He alleged in effect that the company without permission en¬ 
tered his private yard, erected a telephone pole and strung 
wires thereon, which were dangerous to the life, limb, and se¬ 
curity of any one who should occupy said house, by reason 
of the close proximity thereto; that said premises would be 
subject to constant invasion for the purpose of mending and 
repairing said wires, and subject him to annoyance, inconven¬ 
ience, etc., and the placing and wiring of said pole has mate¬ 
rially decreased the value of said property; prayer for $600.00 
actual and $400.00 exemplary damages. Before trial petition 
was amended, alleging that the pole had been removed; that a 
large hole had been left where the pole stood, ground torn up 
considerably; that he had to employ lawyers to institute suit; 
that he had lost time which he valued at $5.20 per day trying to 
get the company to remove the pole. On trial he was given 
judgment for $135.00. 

Amount of damage sustained. —In answer to the following 
question, ‘ ‘ What would have been the depreciation in the value 
of the land, in the condition it was at the time that the pole 
w T as placed there, if the pole had been left there,” the witness 
answered, “About $500.00.” To the question, “What would 
have been the depreciation in the value—the decrease in the 
value—of the land if the pole was there now.” The witness 
answered, “All the way from $300.00 to $700.00.” The pole 
had been removed before the trial and this testimony was im¬ 
proper and prejudicial. 

Lost time not an element of damages. —The higher court on 
appeal declared that in this case, the element of lost time was 
not a proper one to consider in fixing the verdict. 

Compensation only for loss sustained. —Plaintiff should have 

(1) S. Tel. & Tel. Co. v. Whiteman, 81 S. W. Rep., 76; 36 T. 
C. A., 163. 



60 


Texas Telephone Laws. 


recovered only such compensation as was the natural and proxi¬ 
mate loss caused by such trespass. The company placed the 
pole, not knowing it to be private property—the property was 
not occupied and no one injured by the wires. The pole was 
placed in the corner of the lot at the intersection of two streets 
and when the pole was removed the hole was filled up, but the 
dirt had settled, which left a depression. The hole was not a 
permanent injury to the land, and plaintiff was entitled to 
what it would cost to fill it up and make the grass grow where 
it had been disturbed and to a nominal sum for the time the 
pole and wire remained on the premises. The sum recovered 
was in excess of the damages sustained. Reversed and re¬ 
manded. 


CHAPTER XVI. 


DAMAGES TO ABUTTING OR ADJOINING PROPERTY BY 
KILLING TREES. 

Statement of case.—Suit by defendant in error to recover of 
plaintiff in error the value of two shade trees destroyed by 
the servants of plaintiff in error. Plaintiff in error, by virtue 
of a grant from the city of Terrell, erected poles and strung 
its wires thereon along the edge of the sidewalk in a public 
street in said city, and in front of the premises of defendant in 
error, which abutted on said street, and on which defendant in 
error resided. Defendant in error had growing on said prem¬ 
ises, and within his inclosure, two large shade trees, the 
branches of which extended over the sidewalk and came in 
contact with the wires of plaintiff in error, and thereby im¬ 
paired the usefulness of the same. During the years 1901 and 
1902 the employes of plaintiff in error without the consent of 
defendant in error and over his protest entered upon said prem¬ 
ises, climbed said trees with spurs, puncturing therewith the 
bodies of said trees, and trimmed off some of the branches 
thereof, which caused said trees to wither and die, to defend¬ 
ant in error’s damage the value thereof, to wit, the amount 
of the judgment herein (1). 

Court’s opinion.—The contention of plaintiff in error is that 
“the defendant company, having acquired the right from the 
municipality of Terrell, Texas, to construct, operate, and main¬ 
tain its lines of wires and poles along, upon, and over the 
streets of said city, for the purpose of maintaining a telephone 
system in the service of the public, would have the right, in the 
exercise of ordinary care, to remove all developing or growing 
limbs of trees, which had by such growth come in contact with 
its wires, so as to interfere with or destroy the purpose for 
which such wires were constructed and to be used.” 

Without entering into a discussion of the respective rights 
of the abutting property owners and public corporations to the 
use of sidewalks along a street, we will confine ourselves to the 


(1) S. Tel. & Tel. Co. v. Branham, 74 S. W. Rep., 949. 



62 


Texas Telephone Laws. 


mere statement that plaintiff in error had no right to enter the 
premises of defendant in error, without his consent, and in¬ 
jure his trees in the manner it was done, as shown by the evi¬ 
dence, and escape liability for the damages done. (Judgment 
for damages sustained.) 


CHAPTER XVII. 


DAMAGES TO ABUTTING OR ADJOINING PROPERTY. 

Use of highway an additional burden.—It is well settled law 
in this state that the construction of a telephone or telegraph 
line along or across a public road or street is an additional 
burden upon such highway (1). 

Abutting property owner may recover damages.—One who 

owns property abutting upon or adjoining the thoroughfare 
may recover from the company damages for loss occasioned by 
the construction of such line (1). But such recovery is limited 
to ascertainable depreciation in market value of the abutting 
property (1). If it be established that the market value of 
the property after the line’s construction is less than it was 
before, then pecuniary compensation may be awarded, not 
otherwise (1). 

This depreciation in value may be brought about in various 
ways, as by hindering a free egress and ingress (2), or by 
rendering the premises unsightly, or by injury to growing trees 
(1). But however brought about the ultimate question is as 
to the market value. 

And damages having been once recovered, paid and receipted 
for, no other action can be sustained therefor (2). The injury 
is, it appears, a permanent and continuing one for which dam¬ 
ages in one lump sum only may be awarded (2). 

Fact that the line is erected and maintained according to 
law and with proper legal authority is not a defense to the 
action, if its presence contributes to a reduction in the value 
of the abutting property (1). 

In the language of the court: 

“The contention of the defendant that because its line of 
telephone was constructed and in operation before plaintiff be¬ 
came the owner of the abutting property would be a complete 

(1) S. Tel. & Tel. Co. v. Smithdeal, 124 S. W. Rep., 627; 103 
Tex., 128; S. Tel. & Tel. Co. v. Smithdeal, 126 S. W. Rep., 942; S. 
Tel. & Tel. Co. v. Smithdeal, 136 S. W. Rep., 1049; 104 Tex., 258; 
Townsite Co. v. Tel. Co., 164 S. W. Rep., 50. 

(2) S. Tel. & Tel. Co. v. Brown, 44 S. W. Rep., 59. 



64 


Texas Telephone Laws. 


defense to plaintiff’s claim for damages to his property result¬ 
ing from the causes set forth in his petition, were it not true 
that there was evidence # * * to the effect that additions 

had been made to the structures of the defendant within the 
two years next preceding the bringing of plaintiff’s suit, and 
there is in the record evidence that, after plaintiff purchased 
the property adjacent to the streets along which defendant has 
constructed its lines, at least two large and tall telephone 
poles had been placed and in different localities from where 
they formerly were, and at least one large cable strung, and 
that there was some injury to the boughs and limbs of his 
trees caused by the presence and contact of the cables.” 

In this case a mandatory injunction requiring the company 
to remove its lines from the boughs and limbs of plaintiff’s 
shade trees, was held not authorized, though the judgment for 
damages in the sum of $200.00 for depreciation in value of the 
property was sustained (1). 

Refusal of city council to designate locations for poles.— 

When the council fails or refuses to designate to the company 
the place where its poles shall be placed and its lines run, it 
thereby abandons its right to do so, and the company has the 
right to erect same in accordance with plans submitted to the 
council. And thereafter, the city will not be permitted to in¬ 
terfere with the construction work. And injunction will lie 
to prevent the city from harassing or prosecuting or hindering 
the company’s employes (3). 

City council can not delegate regulatory power.—The city 
council can not delegate to an officer, for instance the city mar¬ 
shal, the right to prescribe regulations relating to disturbance 
of the surface of its streets for building of telephone lines (3). 

City can not charge a price for use of its streets.—It seems 
clear that a city or town has no right to charge a long distance 
company money for the use of its streets, alleys, etc., for the 
reason that the right to use same is conferred by general law, 
and any agreement to pay for such use is non-enforcible for lack 
of consideration (4). But since the Brownwood decision of the 

(3) Texarkana v. Tel. Co., 106 S. W. Rep., 915. 

(4) Tel. Co. v. Gainesville, 141 S. W. Rep., 1044. 



Texas Telephone Laws. 


65 


Supreme Court (5) there must be a doubt whether a city or 
town may not charge local companies a fixed price for use of 
streets or alleys. 

City may require advance deposit against possible damage.— 

The city may, however, require an advance deposit of cash, or 
satisfactory equivalent, as indemnity against possible damage 
resulting to its sidewalks and other property from the erection 
of the lines (5). 

When right to use streets accrues to company. —“When the 
townsite company filed its map, and executed and recorded its 
deed of dedication, to the public of the streets of said town, 
such dedication was subject to the statute previously quoted 
(Art. 1231, et seq.), the streets became public streets of the 
state, and were not required to be condemned, or paid for, by 
such corporations for the use of said highways, if used in such 
manner as not to incommode the public and subject to a rea¬ 
sonable regulation of a municipality as to such use” (6). 

Townsite company can not prevent company from using 
streets. —After granting of the streets, the townsite company 
has no control over them and can not prevent a telephone com¬ 
pany from using them (6). The townsite company has noth¬ 
ing more to do with the streets in this connection than would 
a stranger (6). 

De facto telephone company may use streets. —It seems that 
a de facto telephone company may exercise the power of em- 
innt domain, or may use public roads and streets as well as 
a telephone corporation de jure (6). 

Only telegraph or telephone company may exercise power.— 
No corporation has any right to exercise the power of eminent 
domain in the condemnation of a right-of-way for erection of 
telegraph or telephone lines, except such a corporation as is 
expressly created to do a telegraph or telephone business (7). 

(5) Brownwood v. Tel. Co., 157 S. W. Rep., 1163. Se, also, 
Athens v. Tel. Co., 163 S. W. Rep., 371. 

(6) Townsite Co. v. Tel. Co., 164 S. W. Rep., 50. 

(7) Plaster Co. v. Plaster Co., 167 S. W. Rep., 183. 



CHAPTER XVIII. 


EXEMPLARY DAMAGES FOR INJURY TO ABUTTING 
PROPERTY. 

Elements of exemplary damages. —To warrant punitory (or 
exemplary) damages, there must be some bad motive, or such 
reckless conduct, either intentional or grossly negligent, as 
shows a conscious disregard of the rights of another (1). 

The plaintiff’s house was occupied by tenants at the time 
of the injury, and, while it was shown that neither he nor his 
tenants gave their consent, it did not appear in evidence that 
either made any objection until the work was done. It would 
seem that when plaintiff did object, the company had the pole 
removed. 

The damages claimed, it was alleged, resulted from tearing 
up of the sidewalk and cutting a hole in the awning for the pur¬ 
pose of setting a telephone pole. 

There was no evidence indicating that the company’s man¬ 
ager intended to act in other than a lawful manner. 

Exemplary damages not warranted. —Under the above facts 
the higher court on appeal held there was no proper basis for 
recovery of exemplary damages, and made affirmance of the 
judgment contingent upon filing of remittitur of $40.00, the 
amount recovered (1); using this language: “It is neither 
a case of malice, oppression, nor gross negligence. The inten¬ 
tional doing of a wrongful act without legal justification or 
excuse is ordinarily malicious; but although an act may be 
intentional, and may result in a wrong, yet exemplary damages 
should not be awarded, when it appears that there was no 
actual intention to invade any right.” 

Actual damages justified. —“The fact that the telephone pole 
was placed according to the direction of the mayor of the city 
and of the city engineer, and that it was removed in a short 
time, show that the plaintiff was entitled to full compensation 
for his damages.” The judgment for $40.00 in actual dam¬ 
ages approved (1). 


(1) Erie Tel. & Tel. Co. v. Kennedy, 15 S. W. Rep., 704. 



CHAPTER XIX. 


TELEPHONE LINE INTERFERING WITH MOVING OF 

HOUSE. 

Statement of the case.—The house which Thompson and Spen¬ 
cer desired to move was 28 feet wide, 90 feet long, inside meas¬ 
urement. and 30 feet in height. They had secured permission 
from the city authorities to use the streets in question in mov¬ 
ing the house. 

The company’s wires were only 25 feet from the ground so 
that the house could not be moved under them intact, unless 
the wires were lifted higher. 

An effort was made to get the telephone company to have the 
wires raised, Spencer offering to deposit $50.00 to cover pos¬ 
sible damages, and to pay more if necessary, he being financially 
solvent. 

On petition of the company a temporary injunction was is¬ 
sued restraining Thompson and Spencer from interfering with 
the poles, wires, cables, etc. 

Pending settlement of the litigation they moved the house, 
first cutting off the top and roof so that it would pass under 
the wires. 

There was no other practicable route by which the house 
could have been moved to the destination desired. 

The wires, cables, etc., could have been raised above the house* 
and replaced by the company at a cost of not more than $50.00., 

On trial of the case, the temporary injunction was dissolved 
and judgment entered awarding Thompson $50.00 on his cross- 
action for loss of time; Spencer $50.00 for money expended in 
having the roof of the house cut; $50.00 for material used and 
$250.00 for injuries resulting to the house on account of hav¬ 
ing the top cut and moved in that condition. The company 
appealed to the Court of Civil Appeals (1), which court de¬ 
cided : 

Use of public street.—While the use of the street for the pur¬ 
pose of moving a house is not ordinarily .a public one, yet when 


(1) S. Tel. & Tel. Co. v. Thompson, 142 S. W. Rep., 1000. 



68 


Texas Telephone Laws. 


the city council gave express permission for such use the appel¬ 
lees had a right to exercise the permission. 

Raising of wires by company. —And if, under such circum¬ 
stances, the company’s wires interfered with the moving of the 
house, and the company refused to raise same, then appellees 
had a right to move the wires at the expense of the company. 

Damages for injury to house. —The company having en¬ 
joined appellee against disturbing its wires, thus forcing him 
to cut the top of the house in order to move it along the street 
which he had a right to do, he was entitled to recover there¬ 
for such damages as are mentioned above. 

Power of city to regulate wires. —The city government au¬ 
thorized the company to erect and place its wires, poles, cables, 
etc., but this did not authorize the company to maintain same 
at a certain height, so as to deny the city government the right 
to have them moved or changed. 

Height at which wires may be maintained. —Fact that the 
company had placed its wires so high that they did not inter¬ 
fere with the usual and ordinary course of traffic did not pre¬ 
vent the city from directing and requiring that they be raised 
or altered. 


CHAPTER XX. 


DAMAGE FOR NEGLIGENT FAILURE TO FURNISH 
SERVICE. 

Duty of a telephone company. —While a telephone line is a 
means employed for transmission of messages between persons, 
yet the engagement of a telephone company is only to bring 
the persons desiring to talk into positions where they may com¬ 
municate with each other (1). 

There is no obligation resting upon a telephone company 
to deliver a message, for the reason that it does not undertake 
to perform that service, but only to bring a person at one point 
on its line to its office in order that one at another point desir¬ 
ing to talk with him may do so (2). 

And a court charge which assumes that a telephone company 
is engaged in the business of transmitting messages is not ac¬ 
curate (3). 

Duty to local subscribers. —“To its local subscribers the tele¬ 
phone company owes the duty of placing them in communica¬ 
tion with other phones on its line when called upon to do 
so” (1). 

Assumption of additional duty. —In case a telephone company 
actually receives a written message for transmission, then it 
of course becomes liable for prompt and proper transmission 
thereof (4), unless merely acting as agent as elsewhere ex¬ 
plained. 

Assumption of additional duty—Repeated conversations (5). 
—It frequently transpires that an operator will, upon request 
of the patron, repeat part or all of a conversation, when, for 
any reason, request is made. But in such instances, the repeat- 


(1) Tel. Co. v. Allen, 146 S. W. Rep., 1066. 

(2) Tel. Co. v. Gotcher, 53 S. W. Rep., 686. 

(3) Tel. Co v. Flood, 111 S. W. Rep., 1064. 

(4) Western U. Tel. Co. v. Lovely, 52 S. W. Rep., 563. 

(5) Generally, every reference to “the company” is of course 
understood as applying to and including each and every officer, 
agent, servant or employe of the company. 



70 


Texas Telephone Laws. 


ing is done on request of the patron and the act is that of the 
patron, not of the company (6). 

Company required to exercise diligence.—In the discharge 
of this duty of establishing telephonic connection, the company 
is required to exercise due diligence, that is to say, “that de¬ 
gree of diligence that an ordinarily prudent person would use 
in the transaction of his own business under like or similar 
circumstances, * ’ 

Whether diligence shown is jury question.—It is a question 
for the jury to determine, from all the facts and circumstances, 
whether or not the company has used due diligence in any given 
case (7). 

The duty is a personal one, for which the company can not 
evade responsibility. 

No fixed rule as to the steps which must be taken in an effort 
to get the parties in communication, can possibly be framed 
which would apply in all cases, but it is clear that the operator 
must make at least some effort to locate the party called (7), 
and that a mere inquiry is not sufficient. 

Thus, when a person calling notified the company that the 
person called could be found at the Frisco roundhouse, that 
he was working on the rip track, that the timekeeper would 
know where to find him, and that it was a sick call, the court 
held on appeal, that the duty was not fully discharged if the 
operator merely called for him by phone at the roundhouse 
without giving the further information which had been fur¬ 
nished (7). 

Or, when a call was placed by a farmer for his family phy¬ 
sician who lived in a city and the physician was within easy 
call of the phone office, but the operator did not call him but 
himself answered the call representing that he was the phy¬ 
sician and promising to respond to the summons at once (8). 

Or, when the operator answered an inquiry for Jeff Owens 
by saying that he was gone from that locality, when in fact, 
he lived within about one-quarter of a mile of the telephone 

(6) Western U. v. Holcomb, 152 S. W. Rep., 190, is a telegraph 
case which throws some light on this point, citing authorities. 

(7) Tel. Co. v. McCoy, 114 S. W. Rep., 387, same case affirmed 
by Supreme Court, 119 S. W. Rep., 88. 

(8) Texas Central Tel. Co. v. Owens, 128 S. W. Rep., 926. 



Texas Telephone Laws. 


71 


office, had lived there six or seven years and was well known 
at that place (9). 

Instances might be multiplied, but those cited are sufficient 
to show the character of negligence ordinarily complained of. 
As stated, it is clear that more is expected of an operator in 
delivering a call than a mere inquiry for the person wanted. 

When liability accrues.—There is, however, no obligation 
upon the company from which liability in damages will result 
until it has undertaken, or promised or agreed, directly or im¬ 
pliedly, to perform the service required (10). True, the com¬ 
pany being a public service corporation can not rightfully re¬ 
fuse the use of its facilities in a proper case, but no legal lia¬ 
bility for negligence can attach until there has been a contract 
for service, express or implied. 

Nor does liability for failure to furnish service accrue when 
the call is for a station to which the company has no line or 
connection. As where one company’s line connected Cisco and 
Clarksville and another’s Cisco and Stamford. There was an 
agreement by the latter to handle the former’s calls to Stam¬ 
ford. The latter’s line extended beyond Stamford to Rotan, 
but there was no agreement to handle the former’s calls fur¬ 
ther than Stamford. On trial the court held there was no obli¬ 
gation on either company to furnish service from Clarksville 
to Rotan (11). 

Nominal damages.—It seems that where the basis of the ac¬ 
tion is mental anguish sustained by the person called, by rea¬ 
son of negligent failure of company to notify him, a judgment 
for mere nominal damages will not be allowed to stand (12). 
As where through negligence of the company, plaintiff failed 
to learn of a telephone call, so that he was deprived of the 
opportunity of being with his mother before her death, and the 
relations between them were shown to be tender and affection¬ 
ate, the jury having returned a verdict for only $1.00, the 
higher court on appeal reversed the judgment and said: 

“The verdict establishes the liability of appellee, and the 

(~9) Tel. Co. v. Owens, 116 S. W. Rep., 89. 

(10) Tel. Co. v. Lewis, 59 S. W. Rep., 303. 

(11) Tel. Co. v. Terry, 127 S. W. Rep., 567. (This is undoubtedly 

the substance of the court’s decision, and it raises a question as to 

the effectiveness of the physical connection statute.) 



72 


Texas Telephone Laws. 


undisputed evidence shows that, if it was liable at all, appel¬ 
lant (plaintiff below) was entitled to some compensation. The 
amount of that compensation vras, it is true, largely in the dis¬ 
cretion of the jury, but they had no right, under the evidence 
as to mental suffering of appellant, as disclosed by the evidence 
to say that he was entitled to no damages therefor. If the 
$1.00 was intended as compensation, which it clearly was not, 
it is too small” (12). 

Damages for business loss sustained.—Damages are recov¬ 
erable against the company when because of its negligence, it 
is shown that a person called was subjected to financial 
loss (13). 

It is clear, however, that in such a case the company could 
not be held liable for consequential damages resulting from its 
negligent failure to notify one for whom a call is put in of 
the fact that another party desires to talk with him over the 
telephone, unless it was in some way acquainted with the nature 
purpose and subject-matter of the proposed conversation, so 
that the damages likely to result from such failure may be said 
to have been within the contemplation of the parties (13). 

Rule as to notice of subject-matter of desired conversation. 
—Indeed, it is a rule of universal application in damage suits 
based on negligent failure to render service, that the company 
is liable only for such damages as it had notice might result 
from such negligence (13). That is to say, unless the person 
placing the call shall notify the company through its operator 
or other agent, of the nature and importance of the call, no 
damages may be recovered for failure to establish communica¬ 
tion (14). 

If the call be for purpose of communicating a death message 
and neither the company nor its agent or operator has notice 
thereof, mere failure to render service will not sustain judg- 

(12) Prewitt v. Tel. Co., 101 S. W. Rep., 812. 

(13) Tel. Co. v. Flood, 111 S. W. Rep., 1074. 

(14) Tel. Co. v. Gehring, 137 S. W. Rep., 754; Tel. Co., v. 
Givens, 139 S. W. Rep., 676; Tel. Co. v. Wilcoxson, 129 S. W. Rep., 
868; Tel. Co. v. Gotc'her, 53 S. W. Rep., 686; Tel. Co. v. Owens, 
128 S. W. Rep., 926; Tel. Co. v. Oliver, 102 S. W. Rep., 925. There 
is no dispute as to this point. Many other cases so holding may be 
found, in other jurisdictions. 



Texas Telephone Laws. 


73 


ment for damages for mental anguish endured. So of a sick 
message, or any other. 

Certain things essential to recovery of damages for failure 
to render service.—Among others the following facts are neces¬ 
sary to be shown before a recovery of damages for negligent 
failure to render service' will be sustained by the appellate 
courts: 

1st. Placing of the call with the company, and the com¬ 
pany’s acceptance thereof, thus forming a contract for service. 

2nd. Notice to the company of the nature and subject-mat¬ 
ter of the conversation desired to be had, so that it may have 
in contemplation the resulting damages. 

3rd. The negligence of the company, its agent, operator or 
other employe, in failing to establish the telephonic communi¬ 
cation. 

4th. The actual suffering of mind or “mental anguish’’ (or 
other character of injury) endured by the person for whom or 
by whom the call was placed. 

5th. That (in case plaintiff alleges failure to make a cer¬ 
tain trip, as for instance, to attend a funeral) by reason of 
train connections or other facilities for travel the trip could 
have been made had notice of the call been properly delivered. 

6th. That the person suffering did not himself contribute 
to the damage by his own negligence; that he did what he 
could or used any means within his power to avert the disaster. 
This is a defensive issue, but there are few cases in which it 
does not figure. 

Amount of damages,—The amount of damages being left 
with the jury to fix, no rules even approximating probable sum 
in any given case could possibly be framed. 

Thus, where due to negligence of an operator, plaintiff was 
deprived of the privilege of going to the bedside of her dying 
father, even though the time delayed was only three hours, 
during which the father was unconscious, the court held justi¬ 
fied a judgment for $500.00 (15). 

And a judgment for $1000.00 was sustained where due to 


(15) Tel. Co. v. Gehring, 137 S. W. Rep., 754. 



74 


Texas Telephone Laws. 


operator’s negligence plaintiff was not notified of a call to the 
bedside of his sick child (16). 

A judgment for $800.00 was sustained where plaintiff was 
denied the privilege and consolation of attending his mother’s 
funeral by negligent failure to notify him of a call (17). 

Also a judgment in the sum of $1000.00 was sustained where 
evidence showed company negligent in placing of a call for 
plaintiff, when her husband had been shot and seriously 
wounded (18). 

In another instance where, if testimony of the witnesses is 
to be believed—and the jury evidently believed it—there was 
most inexcusable negligence in conveying to a physician a call 
to attend a sick woman, the sum awarded was only $100.00 (19). 

Traveling expenses not to be deducted from amount of dam¬ 
ages.—In a recent case, the company contended the jury should 
be instructed to deduct from the sum awarded, if any, the 
amount which plaintiff might have expended in traveling to 
and from the funeral. But the higher court on appeal held 
against this contention (20). 

Call ticket as evidence.—A copy of a call ticket was ex¬ 
cluded where the loss of the original ticket was not sufficiently 
shown, and where the witness could not positively identify the 
copy (21). 

In a later case (22), the court held an original ticket to be 
admissible in evidence as 11 a proper record containing the orig¬ 
inal necessary entries made by the defendant’s employes in 
properly carrying on its business.” 

Office hours.—When company receives call after office hours, 
it can not avert liability by pleading and proof that such call 
was tendered after office hours (21). 

Contributory negligence.—“The law in this state is that if, 

(16) Tel. Co. v. Oliver, 102 S. W. Rep., 925. See, also, Tel. 
Co. v. McCoy, 114 S. W. Rep., 387, same case affirmed by Supreme 
Court, 119 S. W. Rep., 88. 

(17) Tel. Co. v. Owens, 116 S. W. Rep., 89. 

(18) Tel. Co. v. Pearson, 137 S. W. Rep., 733. 

(19) Texas Central Telephone Co. v. Owens, 128 S. W. Rep., 
926. 

(20) Tel. Co. v. Andrews, 178 S. W,. Rep., 574. 

(21) Tel. Co. v. Owens, 116 S. W. Rep., 89. 

(22) Tel. Co. v. Pearson, 137 S. W. Rep., 733. 



Texas Telephone Laws. 


75 


by such action as a person of ordinary prudence would have 
taken under the circumstances, plaintiff could have obtained 
the desired transmission of message by any other means than 
the telephone in time to have averted the disaster, then he is 
not entitled to recover for damages claimed on account of men¬ 
tal anguish resulting from failure to establish communication 
by telephone” (21). 

‘ 1 One who is threatened with damages by reason of the negli¬ 
gent conduct of another should exercise reasonable prudence 
to avert the consequences of such neglect” (21). 

Plaintiff responsible for contributory negligence of his agent. 
—And plaintiff is responsible for failure of his agent to use 
other means to avert the disaster (21). 

Is jury question.—The whole question of contributory negli¬ 
gence is one for the jury (21). 

If plaintiff had no reason to suppose that a telegram or let¬ 
ter would avail sooner than the telephone, his failure to use 
either (or any other means) would not relieve the company of 
liability when he had by the company’s agent been led to be¬ 
lieve that he would get communication by phone as soon as 
could be done by any means (23). 

When the company’s report was that they had not been able 
to find the person called, it was held that resort should have 
been had to other means (24), but where the report was that 
the person called had left that vicinity, when in fact he was 
within easy call, it was held that the company was liable 
whether any other means attempted or not (21). 

Train connections.—When the basis of an action for damages 
for negligent service is that the plaintiff was deprived of the 
privilege of going to a certain place, for instance to the sick 
bed or funeral of a relative, it must be shown that he could in 

(23) Prewitt v. Tel. Co., 101 S. W. Rep., 812. 

(24) Tel. Co. v. Gotcher, 53 S. W. Rep., 686. 

A full and extended review of all cases involving the question of 
contributory negligence would mean merely reiteration of the prin¬ 
ciples announced. See generally: Tel. Co. v. Wilcoxson, 129 S. W. 
Rep., 868; Tel. Co. v. Givens, 139 S. W. Rep., 676; Tel. Co. v. 
Gehring, 137 S. W. Rep., 754; Tel. Co. v. Pearson, 137 S. W. Rep., 
733. 



76 


Texas Telephone Laws. 


fact have made such trip if the telephonic service had been 
properly rendered (25). 

And it is not sufficient to show a train schedule by which 
the trip might have been made, but it seems that proof must 
be made that on the occasion in question, the trains ran on such 
a schedule and made such actual connections as would have 
enabled him to make the desired trip (25). 

Thus, that on the occasion under investigation a train was 
late, etc., may be shown in defense. As, where it was shown 
that because a train was 2 y 2 hours late on the day named in 
the petition, the plaintiff could not have reached the bedside 
of his child before its death, the court declared there could 
be no recovery as against the telephone company for negli¬ 
gence (27). 

And, as proof of such facts must be made, it necessarily fol¬ 
lows that they must be set up in pleading (26). 

Where, however, plaintiff has a choice of several routes or 
trains, it seems clearty a question of fact to be determined by 
the jury whether or not he availed himself of that one best 
calculated, under all the circumstances to take him to his des¬ 
tination (28). And in such an hour of sorrow and distress it 
seems there may be some indulgence extended and if he fail 
to act with the same prudence and discretion to be expected 
under ordinary conditions, it need not be held against him in 
favor of an admitted wrongdoer (28). Or if it be necessary, or 
he deem it so, that he be accompanied by another or others, and 
they be not able to stand the fatigues of a particular route 
which would bring him more quickly to his destination, he may 
defer his going to accommodate the others, and the company 
will not be permitted to charge that he is guilty of contributory 
negligence (28). 

Degree of relationship which justifies recovery.—The rule au- 

(25) Tel. Co. v. Pearson, 137 S. W. Rep., 733; Tel. Co. v. Jarrell, 
138 S. W. Rep., 1165; Tel. Co. v. Gehring, 137 S. W. Rep., 754; S. 
W. Tel. & Tel. Co. v. Wilcoxson, 129 S. W. Rep., 868; S. W. Tel. 
& Tel. Co. v. Andrews, 169 S. W. Rep., 218. 

(27) Sabine Valley Tel. Co. v. Oliver, 102 S. W. Rep., 925. 

(26) S. W. Tel. & Tel. Co. v. Andrews, 178 S. W. Rep., 574; 
S. W. Tel. & Tel. Co. v. Givens, 139 S. W. Rep., 676. 

(28) Tel. Co. v. Taylor, 63 S. W. Rep., 1076. 




Texas Telephone Laws. 


77 


thorizing recovery of damages for failure of service seems to 
extend no farther than where the parties are husband and 
wife..., parent and child or grandparent and grandchild, or 
brother and sister. Within this limitation, however, it seems 
relations of the half-blood are included (29). However, the 
rule might be extended in its application where special affec¬ 
tion or attachment are pleaded and established by proof. 

Damages in telegraph cases have been refused where the par¬ 
ties were uncle and niece (30); brothers-in-law (31); step¬ 
father and step-son (32); mother-in-law or father-in-law and 
son-in-law (33). And there seems no reason for supposing a 
different rule would be adopted in telephone cases, as the ele¬ 
ment of damages would be the same, though predicated on a 
different measure of liability. 

Joint use of telegraph and telephone.—In connection with 
telegraphic service the telephone is in constant use, both in 
sending and in receiving telegrams. 

Extent of liability.—The extent of liability of either or both 
companies for negligent failure to furnish service depends of 
course upon the nature and character of the particular service 
sought, and the contract between them. 

The telephone company is almost never liable in damages in 
such cases. Its function is that of an agent, either of the per¬ 
son desiring to send a telegram and calling the other com¬ 
pany’s operator, or of the other company calling the addressee 
of the telegram. When telephonic communication is estab¬ 
lished its duty is done, and in such cases such communication 
is generally easily established. Of course, negligent failure 
on its part to establish such communication would entail lia¬ 
bility as elsewhere set forth. 

If, however, the two companies have an agreement for divi- 

(29) Tel. Co. V. Andrews, 169 S. W. Rep., 213; same case, 178 
S. W. Rep., 574. 

(30) W. U. Tel. Co. v. Willson, 97 Texas, 22; 75 S. W. Rep., 432. 

(31) W U. Tel. Co. v. Coffin, 88 Texas, 94; 30 S. W. Rep., 896. 

(32) W. U. Tel. Co. v. Kanausue, 143 S. W. Rep., 189. 

(33) W. U. Tel. Co. v. Gibson, 39 S. W. Rep., 198; W. U. Tel. 
Co. v. Rich, 110 S. W. Rep., 93. 



78 


Texas Telephone Laws. 


sion of tolls upon a partnership basis, they would seem to be 
equally liable, especially if the telephone company accepts the 
message with an agreement to deliver on its own responsi¬ 
bility (34). The subject presents many difficulties which it 
seems hardly necessary to attempt to unravel for the reason 
that at this day and time the practically universal custom is 
for the telephone company to act simply as agent of the tele¬ 
graph company, leaving the latter primarily, if not solely, 
liable. 

And where the latter company receives messages by phone, 
it is liable for their proper and accurate delivery (35), as well 
as when it undertakes to deliver same by phone after receipt at 
office of destination (36). 

Respective liability of connecting' telephone lines.—Com¬ 
panies co-operating by means of line connections are governed 
in their duties and liabilities toward each other and the public 
by the ordinary principles of business partnership or agency, 
depending upon which relation exists, subject of course to 
features of any particular contract to which either or both 
may be party. 

If the company receiving a call agrees only to deliver same 
to the end of its own line, when its destination is to some point 
beyond, then the liability ceases with establishment of tele¬ 
phonic communication with connecting line. If, however, it 
agrees to transmit the call to final destination, beyond its own 
line and over other line or lines, it is liable for negligence of 
itself or any connecting line along the way (37). In such case, 
liability of other lines is determined by character of contract 
between them, as being one of agency or of partnership. 

Proof of nature of contract existing between the companies 

(34) Western Union Telegraph Co. v. Lovely, 52 S. W. Rep., 563. 

(35) Texas Telegraph & Telephone Co. v. Seiders, 29 S. W. 
Rep., 258; 9 T. C. A., 431; Western Union Telegraph Co. v. Kuy¬ 
kendall, 86 S. W. Rep., 61, same case, 89 S. W. Rep., 965; 99 
Texas, 323; Western Union Telegraph Co. v. Gore, 124 S. W. Rep., 
977. 

(36) Western Union Telegraph Co. v. Holcomb, 152 S. W. Rep., 
190. 

(37) Tel. Co. v. Jarrell, 138 S. W. Rep., 1165. 



Texas Telephone Laws. 


79 


may be made by testimony of an agent or employe. And where 
it is shown that a company accepts a call and then connects the 
person calling with another or other line or lines, each receiv¬ 
ing a portion of the tolls, the existence of a partnership or 
traffic arrangement is established (38). 

(38) Tel. 'Co. v. Owens, 116 S. W. Rep., 89. Also, see generally: 
Tel. Co. v. Oliver, 102 S. W. Rep., 925; Tel. Co. v. Flood, 111 S. 
W. Rep., 1064; Tel. Co. v. Taylor, 63 S. W. Rep., 1076; Tel. Co. v. 
Terry, 127 S. W. Rep., 567. 

As to right to refuse service to point where company has no line, 
see Tel. Co. v. Terry, 127 S. W. Rep., 567. 





INDEX. 


Page 


ABUTTING OR ADJOINING PROPERTY— 

Damages to, by killing trees. 61 

Damages to owner, for use of street or highway. 63 

Use of highway an additional burden. 63 

Actual damages, for injury to. 66 

Exemplary damages, for injury to. 66 

Townsite company can not prevent use of streets. 65 

(See Power of Eminent Domain; Condemnation Proceedings.) 

BUCKET SHOP— 

(See Criminal Offenses.) 

BUSINESS LOSS— 

Resulting from negligent failure to furnish service. 72 

CALL TICKET— 

As evidence. 74 

CITY OR TOWN— 

Right of telephone company to pass through, is absolute. 17 

May enforce reasonable regulations. 17 

Company not required to accept ordinances of. 18 

Council to hear and determine transfer of message matters. . 33 

Company must obey orders of council. 33 

Refusal of city to designate location for poles, etc. 64 

Council can not delegate regulatory power. 64 

Can not charge price for use of streets. 64 

May require advance deposit against possible damages.. 65 

Power to regulate height at which wires may be maintained. . 68 

May fix telephone rates. 25 

May regulate discounts for prompt payments. 25 

May regulate extensions of credit. 25 

May levy tax upon poles. 10 

May tax wire mileage.. 11 

Can not tax for use of streets. 10 

(See Power of Eminent Domain; Streets; Condemnation Pro¬ 
ceedings.) 

CONDEMNATION PROCEEDINGS— 

Procedure under railroad condemnation statute. 18 

Shall not enter except for lineal survey. 18 

Line may be built, pending appeal from. 15 

No notice required, except outlined by statute. 15 

Description of land to be taken. 16 





























82 


Texas Telephone Laws. 


Page 

CONDEMNATION PROCEEDINGS—Continued. 

Elements of damages. 16 

Failure to agree on damages. 18 

When regular county judge disqualified. 18 

Judge shall appoint commissioners.. 19 

Commissioners shall be sworn. 19 

Shall select day and place of hearing. 19 

Notice, service and return. 20 

When property belongs to estate, non-resident, etc. 20 

Proceedings of commissioners. 20 

Power of commissioners and rule of damages. 21 

Injuries and benefits which shall not be estimated. 21 

Assessment shall be in writing, etc. 21 

Other commissioners may be appointed. 22 

Commissioners, pay of. 22 

Shall make out cost bill. 22 

Either party may remove cause, when. 22 

Decision of commissioners shall be judgment of court. 22 

Costs, how awarded. 23 

Damages paid before property taken. 23 

Deposit of fund, pending appeal. 23 

Right-of-way vested by judgment of court. 24 

(See Power of Eminent Domain; Streets; Damages to Abut¬ 
ting Property.) 

CONSTRUCTION OF LINE— 

Procedure to condemn right-of-way, etc. 12 

CONSOLIDATIONS— 

Right to consolidate exists only under statute. 27 

Corporation can not consolidate with private line. 27 

Company may own line in or out of state. 27 

Company may join with other company. 27 

May purchase or join others. 27 

Manner of effecting consolidations. 28 

CONTRIBUTORY NEGLIGENCE— 

Defined . 3 

As to discontinuance of service. 35 

In low-hanging wire cases. 50 

In guy-wire cases. 43 

As to maintenance of wires. 52 

As to negligently placed pole. 55 

Negligent failure to furnish service. 74 

Principal responsible for, of agent. 75 

Is jury question. 75 

As to injuries from lightning. 55 








































Texas Telephone Laws. 


83 


Page 

CONNECTIONS— 

(See Transfer of Messages.) 

CONNECTING LINES— 

Joint use of. 77 

Extent of liability. 77 

Respective liability of. 78 

CRIMINAL OFFENSES— 

Using vulgar language over telephone. 37 

Injuring, cutting or destroying wires. 37 

Obstructing transmission of message. 37 

Knowingly connecting with bucket shop. 37 

Railroad operator working more than eight hours. 38 

Limiting employe to fifty-four hours per week. 38 

Employers must provide suitable seats for operators. 38 

Operator can not contract to work more than 54 hours. 39 

Law applies to private exchanges. 39 

Giving frank, using other’s frank, etc.40-41 

Discriminations forbidden. 41 

Company must report all free service rendered. 41 

Person receiving free service, guilty of misdemeanor. 42 

Witness may be compelled to testify. 43 

When discrimination not unlawful, special rates, etc. 43 

COUNTY JUDGE— 

When disqualified, procedure. 19 

CUTTING WIRES— 

Injuring, cutting or destroying telephone wires. 37 

CUTTING PASTURE FENCE— 

Damages for. 58 

DAMAGES— 

(See different chapter headings and topic.) 

Amount, for failure to furnish service. 73' 

Traveling expenses not to be deducted from. 74 

When liability for accrues. 71. 

Rule as to notice of subject-matter of conversation. 72 

Certain things essential. 73 

Degree of relationship which justifies. 76 

Joint liability of connecting lines.77-78 

DEATH MESSAGES— 

(See Service.) 






























84 


Texas Telephone Laws. 


Page 


DEFINITIONS— 

Telephone defined. 1 

Technical and other definitions distinguished. 1 

Extension telephone defined. 1 

Telephone exchange defined. 2 

Line defined. 2 

Negligence defined. 2 

Contributory negligence defined. 3 

DE FACTO TELEPHONE COMPANY— 

May exercise right of eminent domain. 65 


DISCONNECTING SUBSCRIBERS’ TELEPHONE— 
(See Discontinuance of Service.) 


DISCONTINUANCE OF SERVICE— 

Damages recoverable. 35 

Contributory negligence. 35 

Punitive damages. 36 

Company’s right to refuse service. 36 

Company bound by employe’s statement. 36 

DISCRIMINATION— 

(See Criminal Offenses.) 

Forbidden. 41 

Giving frank, or using other person’s frank, forbidden. . . .40-41 

Company must report all free service. 41 

Person receiving free service, guilty of misdemeanor. 42 

Witness may be compelled to testify. 43 

Certain kinds of discriminations and special rates, lawful. 43 

EIGHT-HOUR LAW— 

Railroad telephone operator forbidden to work more than. . . 38 


EMINENT DOMAIN, POWER OF— 
(See Power of Eminent Domain.) 


EXTENSION TELEPHONE— 

Defined . 1 

EXCHANGE— 

Defined . 2 

EXCHANGE SYSTEM.— 

Distinguished from private line. .. .. 2 























Texas Telephone Laws. 


85 


p£g0 

FIFTY-FOUR HOUR LAW— 

Female employes forbidden to work more than 54 hours per 


week . 3 $ 

Operator can not contract in violation of. 39 

Applies to private exchange operators. 39 


FREE SERVICE— 

(See Discrimination; Criminal Offenses.) 


GROSS RECEIPTS TAX— 

Levied on telephone company, amount of, report, etc. 7 

Report, when made and to whom. 7 

Penalty for failure to report, or to pay. 8 

Attorney General to bring suit for penalties. 8 

Permit to do business withheld until tax paid. 8 

Is in addition to all other taxes.8-9 


Additional reports may be required; books open to inspection. 9 
GUY WIRES— 

Company charged with notice of condition of wires. 46 

Company has right to construct, liable for negligence, etc... 47 

What is negligent construction. 4 7 

Character and amount of damages recoverable. 4 7 

Contributory negligence. 47 

HEAVILY CHARGED WIRES— 

Duty of company as to. 51 

Personal injuries caused by. 51 

Contributory negligence. 52 


LINE— 

Construction of. 12 

(See Power of Eminent Domain; Condemnation Proceedings.) 

May be built along railroad right-of-way. 15 

As nuisance. 4 5 

Interfering with moving of house.67-68 

Line defined. 2 

Private line and exchange system distinguished. 2 


LIGHTNING— 

Injuries caused by. 52 

Specific charge of negligence in lightning case. 53 

Duty of company to provide against. 53 



























86 


Texas Telephone Laws. 


Page 

LOW-HANGING WIRE— 

Cases involving. 48-49-50 

Contributory negligence. 50 

Amount of damages recoverable for personal injuries caused 
by . 50 

LOOSE WIRE LEFT IN STREET— 

Personal injuries resulting from. 50 

Amount of damages. 51 

Contributory negligence. 50 

(See Personal Injuries.) 


NEGLIGENCE— 

Defined . 2 

Is jury question. 55 

Must be established to justify recovery of damages. 73 

NOMINAL DAMAGES— 

Judgment for, reversed.71-72 

NEWSPAPERS— 

May be allowed special rates, when. 43 

NUISANCE— 

Telephone line as. 45 

Telephone poles erected without authority of law. 45 

Telephone pole as.54-55 

NOTICE— 

No damages recoverable, unless company has. 72 

OFFICE HOURS— 

As related to receipt of call. 74 

OBSTRUCTING MESSAGE— 

Obstructing message by telephone. 37 

OWNERSHIP— 

Who may own telephone line in Texas. 6 

PRIVATE EXCHANGE— 

Operators subject to 54-hour law. 39 

PROFANE LANGUAGE— 

Use of by telephone, forbidden 


37 






















Texas Telephone Laws. 


87 


Page 

POLES— 

Telephone poles as nuisance. 45-54-55 

May be taxed by city or town. 10 

Injuries caused by.54-55 

PHYSICAL CONNECTIONS— 

(See Transfer of Messages.) 

PRIVATE LINE— 

Private line and exchange system, distinguished. 2 

PERSONAL INJURIES— 

Resulting in death, company liable for. 46 

POWER OF EMINENT DOMAIN— 

Defined . 12 

Power to grant, and to whom may be granted. 12 

Exercised only under legislative grant. 12 

Is indispensable to public welfare. 12 

Status of local telephone company, with reference to.12-13 

Conferred upon telegraph and long distance telephone com¬ 
panies .13-14 

Litigation, principal parties to. 14 

Foreign corporation may exercise. 14 

De facto telephone company may use. 65 

Only telegraph and telephone companies may use, when. 65 

Conferred upon private corporations. 6 

RATES— 

But little litigation involving, in Texas. 25 

Subject to local control of city or town. 25 

May be prescribed in franchise. 25 

Adopted by initiative and referendum. 25 

Discounts, extensions of credit, etc. 25 

Adopted by city, not applicable outside of limits. 25 

Special may be given newspapers. 43 

Person having more than one telephone may receive. 43 

REGULATION— 

(See City or Town.) 

RIGHT-OF-WAY— 

(See Power of Eminent Domain; Condemnation Proceedings.) 

























88 


Texas Telephone Laws. 


Page 

SERVICE— 

Damages for negligent failure to furnish.. 69-79 

When liability for damages accrues. 71 

Essentials for recovery of damages for failure to furnish. ... 73 

Nominal damages for failure to furnish. 71 

Damages for business loss sustained by failure to furnish. 72 

Company required to exercise diligence to furnish. 70 

SEATS— 

Company must provide for female employes. 38 

STORM DAMAGE— 

Pole broken by storm. 56 

STREETS— 

Duty of company to keep wires out of. 46 

Telephone company’s right to use. 16 

Loose wire negligently left in street. 50 

Use of, is additional burden.: . . . . 63 

Refusal of city council to designate, etc. 64 

Regulator power of city council not delegable. 64 

City can not charge price for use of. 64 

When right to use accrues to company. 65 

Townsite company can not prevent company using. 65 

De facto telephone company may use. 65 

Height at which wires may be maintained. 68 

SICK MESSAGE— 

(See Service.) 

TAXATION— 

(See Gross Receipts Tax.) 

Ad valorem tax on telephone properties. 7 

Gross receipts tax, occupation tax, etc. 7 

Upon poles may be levied by city or town. 10 

Can not be levied in consideration of use of streets. 10 

May be levied upon wire mileage. 11 

TELEGRAPH— 

Telegraph and telephone distinguished.4-5 

TELEPHONE— 

Ownership. 6 

Foreign corporation may own, in Texas. 6 

Defined . 1 

Telegraph and telephone distinguished..4-5 





























Texas Telephone Laws. 89 

Page 

TELEPHONE COMPANY— 

Books of, subject to inspection by state officers, when. 9 

Must report all free service rendered. 41 

(See Consolidations.) 

Duty to keep wires off of street. 46 

Charged with notice of condition of wires. 46 

Has right to construct guy wire, if in proper manner. 47 

Liable for negligent construction. 47 

De facto telephone company may condemn right-of-way. 65 

Essentials to establish liability for failure to furnish service. . 73 

Has no right to refuse service. 36 

Bound by statement of employe. 36 

Duty of, as to service. 69 

Duty of, as to local subscribers. 69 

Assumption of additional duty of transmitting message. 69 

Repeated conversation. 69 

Duty is to establish telephonic communication only. 69 

Required to exercise diligence. 70 

Diligence is jury question. 70 

When liability accrues, for failure to furnish service. 71 

Duty of, as to heavily charged wires. 51 

Duty of, as to maintenance of wires. 52 

Statute authorizing creation of.. . 6 

Power of eminent domain. 6 

Duty of, to provide against lightning. 53 

Duty of, as to placing poles. 54 

Taxation of.*. 7 

Foreign corporation may engage in business in Texas. 7 

TRANSFER OF MESSAGES— 

Required by statute. 30 

Penalty for refusal to establish. 30 

Consideration, right of city council to fix compensation. 31 

Not necessary to show failure to transmit messages, when. ... 31 
Shall arrange for transfers, connect lines at common points, 

etc. 32 

City council to hear and determine necessity for transfers. . . 33 
Company to comply with council’s order. 33 

TRANSMISSION OF MESSAGES— 

Telephone company does not undertake. 69 

TRAIN CONNECTIONS— 

Must be shown in certain classes of damage cases.75 


































90 


Texas Telephone Laws. 


Page 

TRESPASSING UPON PRIVATE PROPERTY— 

Damages for.59-60 

VULGAR LANGUAGE— 

Use of, by telephone, forbidden. 37 

WIRES— 

Height at which may be maintained. 68 

Mileage may be taxed by city or town. 11 














